R v Haluzan - [2002] QCA 94

[2002] QCA 94

COURT OF APPEAL

McPHERSON JA
MUIR J
PHILIPPIDES J

CA No 339 of 2001

THE QUEEN

MIRASLAV HALUZAN

BRISBANE

..DATE 15/03/2002

JUDGMENT

McPHERSON JA: After extensive consideration of the sentence in this case, and not without some variations of opinion on the matter, I have come to the conclusion that the application for leave to appeal should be dismissed for the reasons about to be given by Mr Justice Muir.

MUIR J: Having pleaded guilty the applicant was sentenced in the District Court on 6 November 2001 to 10 years of imprisonment on each of three counts of armed robbery and three counts of armed robbery in company. He was also sentenced to five years' imprisonment for unlawful use of a motor vehicle, which vehicle was used to facilitate the commission of an indictable offence; to imprisonment for five years for entering a premises with intent to commit an indictable offence; and to imprisonment for two years for stealing an identification, wallet and card. He was also convicted on his own plea and sentenced in relation to a number of summary offences. All sentences were ordered to be served concurrently.

The applicant was born on 4 July 1966 and was 35 years of age at the time of sentencing. His extensive prior criminal history included convictions for assault occasioning bodily harm in February 1987, breaking and entering a dwelling house with intent in March 1988, and for stealing with actual violence whilst armed with a dangerous weapon in August 1988.

In June 1994 the applicant was convicted on three counts of stealing with actual violence whilst armed with a dangerous weapon in company and on another four counts of stealing with actual violence whilst armed with a dangerous weapon. He was sentenced to nine years' imprisonment on each charge, all sentences being ordered to be served concurrently.

The facts relating to the offences now under consideration were recorded in a schedule of facts tendered by the prosecutor without objection at first instance. Those facts which relate to the armed robberies may be summarised as follows:

Count 1. The complainant and an accomplice entered a liquor store on 25 June 2000 at Moorooka where they threatened a 46 year old female shop attendant with knives, requiring her to give them money out of a till. Not content with this they escorted the shop attendant to the rear of the shop where she produced her wallet which they then took and left. The wallet contained $200, and the amount stolen from the till was in excess of $2,000.

Count 3. On 26 July 2000 the applicant in company with another male entered a pharmacy at Woolloongabba disguised by handkerchiefs held or tied over their faces and carrying knives which were said to resemble butchers' knives with blades eight to 10 inches long. The intruders demanded narcotics from the complainant who was working in the pharmacy at the time. A knife was held to his stomach and he was…

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 Haluzan

Details

AGLC: R v Haluzan [2002] QCA 94
Case: [2002] QCA 94
Decision Date: 15/03/2002

CaseChat Overview and Summary

In the case of R v Haluzan, the applicant was appealing against the sentence imposed by the District Court for multiple counts of armed robbery, unlawful use of a motor vehicle, entering premises with intent to commit an indictable offence, and stealing an identification, wallet, and card. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive and whether the sentencing judge had erred in the discounting process for the applicant's early plea and admissions.

The primary issue before the court was whether the sentence imposed on the applicant was manifestly excessive, taking into account his early plea, admissions, and significant grief reaction following the death of a female companion. The court also needed to assess whether the sentencing judge had erred in the discounting process. The Crown argued that the sentence was appropriate, while the applicant's counsel contended that it was manifestly excessive due to the applicant's past and future cooperation with authorities, his grief reaction, and his admissions and early plea of guilty.

The court found that the sentencing judge had appropriately taken into account the applicant's early plea, admissions, and other mitigating factors in determining the sentence. The court also concluded that the sentence, while at the higher end of the permissible range, was not manifestly excessive. The court highlighted that the subject offences represented the third occasion of extensive re-offending or recidivism each time soon after the applicant had served lengthy periods of imprisonment for similar offences, which differentiated this applicant's case from other sentences imposed on similar re-offenders. The court further found that there was no error revealed in the discounting process undertaken by the sentencing judge.

In light of the above, the Court of Appeal dismissed the application for leave to appeal against the sentence. The judges agreed with the reasoning provided by Justice McPherson and Justice Muir, and the order of the Court was that the application for leave to appeal against sentence was dismissed.

Orders