R v Gee - [1998] QCA 321

COURT OF APPEAL

[1998] QCA 321

McMURDO P
McPHERSON JA
SHEPHERDSON J

CA No 247 of 1998

THE QUEEN

SHANE ROBERT GEE Applicant

BRISBANE

..DATE 18/09/98

JUDGMENT

THE PRESIDENT: This is an application for leave to appeal against a sentence which is claimed to be manifestly excessive. The applicant represented himself with the assistance of his father. The applicant pleaded guilty on

1 July 1998 to four indictments containing a total of 19 counts of housebreaking, six counts of stealing, two counts of entering a dwelling with intent and one count of burglary.

He was sentenced on the offence of burglary to four and a half years imprisonment; on the offences of housebreaking to four years imprisonment; on the offences of entering a dwelling house to three and a half years imprisonment; and on the offences of stealing 12 months imprisonment. All sentences were to be concurrent with each other and concurrent with the sentences currently being served.

In addition he was recommended for release on parole after serving 15 months of that sentence. The applicant is now 19 years of age and was 18 at the time he committed these offences. He has a significant criminal history. In April 1997 he was fined on a minor drug charge. Later that month he was placed on probation without conviction for two years on one count of receiving, with special conditions for receiving treatment for heroin addiction.

He was ordered to perform 240 hours community service without conviction for one offence of unlawful use of a motor vehicle. On 12 June 1997 he was dealt with for a breach of the Bail Act when he was convicted of being found in an enclosed yard without lawful excuse and was fined without conviction.
On 8 August 1997 a breach of probation order was proven but no further action was taken. On 7 October 1997 a further breach was proven and he was resentenced for the original offence being fined $500 with a conviction recorded.

He therefore has had the benefit of lenient non-custodial orders, particularly aimed at helping him with his heroin addition, in the past. On 7 November 1997 he pleaded guilty to 13 charges of breaking and entering a dwelling house with intent, two charges of entering a dwelling house with intent, 14 charges of stealing, and one charge of unlawful use of a motor vehicle, involving a total of $13,500 worth of property.

These offences occurred between 1 May 1996 and 30 January 1997, that is before he was placed on probation and given community service. He was sentenced to a total of three years imprisonment with a recommendation that he be considered for parole after serving 10 months of that sentence, and that he receive counselling and treatment to address his drug addiction.

The offences the subject of this application occurred between 20 January 1997 and 10 September 1997, obviously pre-dating his current sentence he is serving. The offences involved property of a value of about $30,000.…

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 Gee

Details

AGLC: R v Gee [1998] QCA 321
Case: [1998] QCA 321
Decision Date: 18/09/1998

CaseChat Overview and Summary

In this appeal, the applicant, Shane Robert Gee, sought leave to challenge the sentence imposed on him by the District Court, arguing that it was manifestly excessive. The applicant, who represented himself with the assistance of his father, had pleaded guilty to various charges including burglary, housebreaking, entering a dwelling with intent, and stealing. The court sentenced him to concurrent terms of imprisonment, with a recommendation for parole after 15 months.

The legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive, considering the nature of the crimes, the age of the offender, and his prior history of offending and attempts at rehabilitation. The applicant argued that his age, cooperation with authorities, and efforts to address his heroin addiction should have warranted a lesser sentence.

The Court of Appeal, however, found that the sentence was not manifestly excessive. The court acknowledged the applicant's age and cooperation but highlighted that the offences were numerous, targeted vulnerable elderly women, and occurred while the applicant was on probation and bail. The court concluded that while a slightly lesser sentence might have been appropriate, the sentence imposed did not make it manifestly excessive. Consequently, the application for leave to appeal was dismissed.

The Court of Appeal's order was to refuse the application and to wish the applicant well in his rehabilitation efforts.

Orders