R v Gwilliams and Fish - [2010] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gwilliams & Fish [2010] QCA 286

PARTIES:

R
v
GWILLIAMS, Evelyn Christine
(first applicant/first appellant)
FISH, Trevor Charles
(second applicant/second appellant)

FILE NO/S:

CA No 108 of 2010
CA No 110 of 2010
DC No 68 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

22 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2010

JUDGES:

McMurdo P, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In each case, the application for leave to appeal is granted and the appeal is allowed, but only to the extent of removing the declaration that count 12 (Fish only), count 15 and count 17 (Gwilliams and Fish) were serious violent offences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicants pleaded guilty to several charges including armed robbery (count 12) and armed robbery in company (counts 12, 15 and 17) – each sentenced to a total of eight years imprisonment with declarations that counts 15 and 17 were serious violent offences – judge made declaration that second applicant's offending in count 12 also serious violence offence – both applicants had drug-related criminal histories but no significant history of violent offending – degree of professionalism in offending – applicants chose vulnerable targets – applicants had been given previous opportunities to rehabilitate – applicants co-operated with authorities and pleaded guilty – whether sentence adequately took into account mitigating features – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – second applicant played more active role in robbery offences – first applicant pleaded guilty to further offence of arson – whether sentence of first applicant gives rise to a justifiable sense of grievance

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS VIOLENCE OFFENDER – judge made declarations that counts 12, 15 and 17 were serious violent offences – whether offences were 'out of the norm' for robbery offences – whether offences warrant declaration that offences were serious violence offences

Penalties and Sentences Act 1992 (Qld), s 13(3), s 13(4), s 161B(3)

R v Apps[2008] QCA 326, cited
R v Burrows [2008] QCA 378, cited
R v Collins [2000] 1 Qd R 45; [1998] QCA 280, cited
R v Keating[2002] QCA 19, cited
R v Lund [2000] QCA 85, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, distinguished
R v Orchard[2005] QCA 141, applied
R v Richardson[2010] QCA 216, cited
R v Woods [2004] QCA 204, distinguished

COUNSEL:

J P Benjamin for the first applicant
H C Fong for the second applicant
T…

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 and Fish

Details

AGLC: R v Gwilliams and Fish [2010] QCA 286
Case: [2010] QCA 286
Decision Date: 22 October 2010

CaseChat Overview and Summary

In the case of R v Gwilliams and Fish, the applicants, Gwilliams and Fish, appealed against their sentences and the associated declarations made by the trial judge. They pleaded guilty to multiple charges including armed robbery and armed robbery in company. Each was sentenced to a total of eight years imprisonment, with declarations that counts 15 and 17 were serious violent offences and that count 12 (for Fish only) was also a serious violence offence. The applicants argued that the sentences were excessive and inadequate in light of the mitigating factors and the parity between co-offenders.

The legal issues for the court to determine were whether the sentences were manifestly excessive or inadequate, and whether the sentences appropriately reflected the mitigating factors such as the applicants' co-operation with authorities and their previous opportunities for rehabilitation. Additionally, the court had to consider whether the sentence disparity between the two applicants was justifiable given their respective roles in the offences. The court was also required to assess whether the offences warranted the declarations that they were serious violence offences.

The court found that the sentences were not manifestly excessive or inadequate, but concluded that the declarations regarding the serious violent nature of the offences were not warranted. The court accepted that the applicants had no significant history of violent offending and had been given previous chances to rehabilitate. The court also noted the professional manner in which the applicants had conducted their offending and the choice of vulnerable targets. However, the court determined that the offences, while serious, were not "out of the norm" for robbery offences and did not warrant the declarations of serious violence. Regarding the parity between the co-offenders, the court found the disparity in sentences to be justifiable given the more active role of the second applicant in the offences.

The final orders of the court were that the application for leave to appeal was granted and the appeal was allowed, but only to the extent of removing the declarations that counts 12 (Fish only), 15, and 17 were serious violent offences.

Orders

Orders of the court

In each case, the application for leave to appeal is granted and the appeal is allowed, but only to the extent of removing the declaration that count 12 (Fish only), count 15 and count 17 (Gwilliams and Fish) were serious violent offences.

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 Gwilliams & Fish [2010] QCA 286
PARTIES:	R v GWILLIAMS, Evelyn Christine (first applicant/first appellant) FISH, Trevor Charles (second applicant/second appellant)
FILE NO/S:	CA No 108 of 2010 CA No 110 of 2010 DC No 68 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	22 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2010
JUDGES:	McMurdo P, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In each case, the application for leave to appeal is granted and the appeal is allowed, but only to the extent of removing the declaration that count 12 (Fish only), count 15 and count 17 (Gwilliams and Fish) were serious violent offences.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicants pleaded guilty to several charges including armed robbery (count 12) and armed robbery in company (counts 12, 15 and 17) – each sentenced to a total of eight years imprisonment with declarations that counts 15 and 17 were serious violent offences – judge made declaration that second applicant's offending in count 12 also serious violence offence – both applicants had drug-related criminal histories but no significant history of violent offending – degree of professionalism in offending – applicants chose vulnerable targets – applicants had been given previous opportunities to rehabilitate – applicants co-operated with authorities and pleaded guilty – whether sentence adequately took into account mitigating features – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – PARTICULAR GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – second applicant played more active role in robbery offences – first applicant pleaded guilty to further offence of arson – whether sentence of first applicant gives rise to a justifiable sense of grievance CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS VIOLENCE OFFENDER – judge made declarations that counts 12, 15 and 17 were serious violent offences – whether offences were 'out of the norm' for robbery offences – whether offences warrant declaration that offences were serious violence offences Penalties and Sentences Act 1992 (Qld), s 13(3), s 13(4), s 161B(3) R v Apps[2008] QCA 326, cited R v Burrows [2008] QCA 378, cited R v Collins [2000] 1 Qd R 45; [1998] QCA 280, cited R v Keating[2002] QCA 19, cited R v Lund [2000] QCA 85, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, distinguished R v Orchard[2005] QCA 141, applied R v Richardson[2010] QCA 216, cited R v Woods [2004] QCA 204, distinguished
COUNSEL:	J P Benjamin for the first applicant H C Fong for the second applicant T…