R v Gambier - [2009] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gambier [2009] QCA 138

PARTIES:

R
v
GAMBIER, Jason Edward
(applicant)

FILE NO/S:

CA No 68 of 2009
DC No 5 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2009

JUDGES:

Keane and Chesterman JJA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven counts of using a carriage service to send a communication with the intention of inducing a false belief that an explosive had been left at a place – where applicant was sentenced to nine months imprisonment on each count – where applicant to be released after serving four months – where applicant ordered to pay restitution in the amount of $3,000 – where applicant appealed against the sentence imposed – where applicant submitted period to be served before release manifestly excessive and disproportionate to head sentence – whether sentence manifestly excessive

Crimes Act 1914 (Cth), s 17A, s 19AC, s 19AG
Criminal CodeAct 1995 (Cth), s 474

R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, considered
R v Mills[2000] QCA 357, cited
R v Mokoena[2009] QCA 36, considered
R v Robertson[2008] QCA 164, considered
R v Tobin[2008] QCA 54, cited
R v Waugh[1999] QCA 45, cited

COUNSEL:

J Sharp for the applicant
P Floyd for the respondent

SOLICITORS:

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

: KEANE JA I have had the advantage of reading the reasons for judgment prepared by A Lyons J. I agree with those reasons and with the order proposed by her Honour.

CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by A Lyons J.

A LYONS J: On 20 August 2007, Mr Gambier made seven phone calls advising that a bomb had been left in two nightclubs at Airlie Beach. On 20 March 2009, Mr Gambier pleaded guilty to seven breaches of s 474.16 of the Criminal Code Act 1995 (Cth), namely using a carriage service to send a communication with the intention of inducing a false belief that an explosive had been left at a place. Mr Gambier was 23 years of age at the time of sentence and he had a minor criminal history.

Mr Gambier was sentenced to nine months imprisonment on each count, to be served concurrently. It was ordered that he be released after serving four months, upon giving a recognizance in the sum of $3,000, and that he be of good…

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 Gambier

Details

AGLC: R v Gambier [2009] QCA 138
Case: [2009] QCA 138
Decision Date: 26 May 2009

CaseChat Overview and Summary

In the case of R v Gambier, the applicant had pleaded guilty to seven counts of using a carriage service to send communications with the intention of inducing a false belief that an explosive had been left at various locations. The case was heard and determined in a court of appeal in Australia. The applicant was sentenced to nine months imprisonment on each count, with the condition that he would be released after serving four months, and was also ordered to pay restitution in the amount of $3,000. The applicant appealed against the sentence imposed, arguing that the period to be served before release was manifestly excessive and disproportionate to the head sentence.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered the principle that a sentence may be manifestly excessive if it is so disproportionate to the offence that no reasonable person could have imposed it. The court also examined whether the sentence was manifestly inadequate, which would mean that it was so lenient that no reasonable person could have imposed it. The court's task was to determine if the sentence fell outside the range of sentences that could be regarded as reasonable, given the circumstances of the case.

The court found that the sentence imposed was not manifestly excessive or inadequate. The court recognised that the applicant's conduct was serious, as it involved causing public alarm and potentially disrupting public safety. The court also considered the need for the sentence to have a deterrent effect and to reflect community standards of justice. The court held that the sentence of nine months imprisonment, with a non-parole period of four months, was within the range of sentences that could be regarded as reasonable, given the nature and circumstances of the offence. The court also noted that the order for restitution was appropriate to address the harm caused by the applicant's actions.

The court refused the application for leave to appeal against the sentence. The court found that the sentence imposed was not manifestly excessive or inadequate, and that it was within the range of sentences that could be regarded as reasonable, given the nature and circumstances of the offence. The court held that there was no basis for interfering with the sentence imposed by the trial judge. The final orders of the court were that the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused

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 Gambier [2009] QCA 138
PARTIES:	R v GAMBIER, Jason Edward (applicant)
FILE NO/S:	CA No 68 of 2009 DC No 5 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	26 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2009
JUDGES:	Keane and Chesterman JJA and A Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to seven counts of using a carriage service to send a communication with the intention of inducing a false belief that an explosive had been left at a place – where applicant was sentenced to nine months imprisonment on each count – where applicant to be released after serving four months – where applicant ordered to pay restitution in the amount of $3,000 – where applicant appealed against the sentence imposed – where applicant submitted period to be served before release manifestly excessive and disproportionate to head sentence – whether sentence manifestly excessive Crimes Act 1914 (Cth), s 17A, s 19AC, s 19AG Criminal CodeAct 1995 (Cth), s 474 R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, considered R v Mills[2000] QCA 357, cited R v Mokoena[2009] QCA 36, considered R v Robertson[2008] QCA 164, considered R v Tobin[2008] QCA 54, cited R v Waugh[1999] QCA 45, cited
COUNSEL:	J Sharp for the applicant P Floyd for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Commonwealth) for the respondent