R v Gwilliams - [2008] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION: R v Gwilliams [2008] QCA 40
PARTIES: R
v
GWILLIAMS, Lonnie Michael
(applicant/appellant)
FILE NO/S: CA No 274 of 2007
CA No 7 of 2008
DC No 579 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
Sentence Application
ORIGINATING
COURT: District Court at Ipswich
DELIVERED EX
TEMPORE ON: 4 March 2008
DELIVERED AT: Brisbane
HEARING DATE: 4 March 2008
JUDGES: Fraser JA, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Appeal against conviction is dismissed
Application for leave to appeal against the sentence is
refused

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR UNSUPPORTABLE VERDICT - where appellant was convicted after a trial by jury of wilfully and unlawfully setting fire to a dwelling - where appellant was sentenced to three years imprisonment with an 18 month parole date - where appellant chose not to give or call evidence - whether the jury's verdict was unsafe and unsatisfactory - whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where sentence was not manifestly excessive - where the appellant did not have the advantage of a plea of guilty - where the appellant was aged 35 years at the time of the offence - where the appellant had an extensive criminal history - where sentence imposed was not outside the proper exercise of sentencing discretion
MFA v The Queen (2002) 213 CLR 606, cited
R v Johnson [2007] QCA 249, cited
COUNSEL: The applicant/appellant appeared on his own behalf
M J Copley for the respondent
SOLICITORS: The applicant/appellant appeared on his own behalf
Department of Public Prosecutions (Qld)

FRASER JA: I will ask Justice Atkinson to deliver the first judgment.

ATKINSON J: Lonnie Michael Gwilliams was convicted on 27 October 2007 after a trial by jury in the District Court at Ipswich of wilfully and unlawfully setting fire to a dwelling on 16 March 2007. He has appealed against the conviction on the ground

that the verdict was unsafe and unsatisfactory and applied for leave to appeal against
sentence on the basis the sentence was manifestly excessive.

The applicant was sentenced on 11 December 2007 to three years' imprisonment with 10 June 2009 fixed as the parole release date. That was after he had served 18 months of the three years' imprisonment. The sentencing Judge said this reflected an effective sentence of four years and two months taking into account that the applicant had

effectively served seven months' imprisonment before the sentence was imposed

which could not be declared because he was also in custody for other reasons.

Appeal against…

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 Gwilliams

Details

AGLC: R v Gwilliams [2008] QCA 40
Case: [2008] QCA 40
Decision Date: 4/03/2008

CaseChat Overview and Summary

The appellant, Gwilliams, was convicted by a jury of wilfully and unlawfully setting fire to a dwelling and was sentenced to three years imprisonment with an 18-month parole date. Gwilliams chose not to give evidence or call witnesses in his defence. The appellant appealed against the conviction on the ground that the verdict was unreasonable or unsupportable. He further sought leave to appeal against the sentence.

The court was required to determine whether the jury's verdict was unsafe and unsatisfactory, and whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The court considered the evidence presented at trial, the absence of evidence from the appellant, and the jury's role in assessing the credibility of the evidence and drawing inferences. The court emphasised the well-established principle that it is not its function to re-evaluate the evidence or substitute its own verdict for that of the jury. Instead, the court was tasked with determining whether the jury's verdict was open to them on the evidence before them.

The court held that the evidence, when considered as a whole, was sufficient to support the jury's verdict. The absence of evidence from the appellant did not undermine the verdict, as it was open to the jury to draw adverse inferences from the appellant's silence. The court concluded that the jury's verdict was safe and satisfactory, and that it was open to them to be satisfied beyond reasonable doubt that the appellant was guilty. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Appeal against conviction is dismissed

Application for leave to appeal against the 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 Gwilliams [2008] QCA 40
PARTIES:	R v GWILLIAMS, Lonnie Michael (applicant/appellant)
FILE NO/S:	CA No 274 of 2007 CA No 7 of 2008 DC No 579 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX
TEMPORE ON:	4 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2008
JUDGES:	Fraser JA, Atkinson and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction is dismissed Application for leave to appeal against the sentence is refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR UNSUPPORTABLE VERDICT - where appellant was convicted after a trial by jury of wilfully and unlawfully setting fire to a dwelling - where appellant was sentenced to three years imprisonment with an 18 month parole date - where appellant chose not to give or call evidence - whether the jury's verdict was unsafe and unsatisfactory - whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where sentence was not manifestly excessive - where the appellant did not have the advantage of a plea of guilty - where the appellant was aged 35 years at the time of the offence - where the appellant had an extensive criminal history - where sentence imposed was not outside the proper exercise of sentencing discretion
MFA v The Queen (2002) 213 CLR 606, cited R v Johnson [2007] QCA 249, cited
COUNSEL:	The applicant/appellant appeared on his own behalf M J Copley for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Department of Public Prosecutions (Qld)