R v Hargrave - [1996] QCA 5

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 429 of 1995
Brisbane
[R. v. Hargrave]

T H E Q U E E N

TULSA ADAM HARGRAVE (Applicant)
FITZGERALD P.
MCPHERSON J.A.

MACKENZIE J.

Judgment delivered 09/02/1996

REASONS FOR JUDGMENT - THE COURT

Application for leave to appeal against sentence refused.

CATCHWORDS:	SENTENCE - unlawful use of a motor vehicle, house-breaking and stealing - whether 12 months’ imprisonment for each count, suspended after 4 months with an operational period of 3 years was manifestly excessive - aplicant was 18 years old at the time he committed the offences - has an extensive criminal history of committing similar offences
Counsel:	D. Lynch for the Applicant J. Costanzo for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	30 January 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 429 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Mackenzie J.

[R. v. Hargrave]

T H E Q U E E N

TULSA ADAM HARGRAVE (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/02/1996

This is an application for leave to appeal against sentences imposed in the District Court at

Brisbane on 4 October 1995. The applicant pleaded guilty to three offences, one of unlawful use

of a motor vehicle on 6 September 1994, one of house-breaking on 5 October 1994 and the other

of stealing on that date. On each count, he was sentenced to imprisonment for 12 months,

suspended after four months with an operational period of three years.

On the evening of 6 September 1994, the applicant removed a motor vehicle from outside its

owner’s home and was subsequently apprehended by police who noticed it speeding. Repairs

to the vehicle costing $2,635.11 were necessary.

On 5 October 1994, the applicant acted as lookout while friends entered a home during daylight

hours and stole domestic and personal items valued at $5,894. When interviewed, the applicant
admitted his involvement.

The applicant was born on 13 April 1976 and was aged 18 years when he committed the offences

and 19 years when he was sentenced. By then, he had already compiled a criminal history. In

March 1994, he was ordered to perform 100 hours’ community service for offences of house-

breaking and stealing; in May 1994, he was placed on probation for three years and ordered to

perform 240 hours’ community service for house-breaking, stealing and false pretences; later the

same month, he was placed on probation for two years and ordered to perform a further 240

hours’ community service for house-breaking and stealing; in September 1994, he was placed

on probation for three years and fined $800 for entering a dwelling-house with intent, two

offences of stealing, one of house-breaking, one of attempting false pretences, two of receiving

and one of false pretences; in February 1995, following breaches of probation and community

service, he was re-sentenced for earlier offences to imprisonment for nine…

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 Hargrave

Details

AGLC: R v Hargrave [1996] QCA 5
Case: [1996] QCA 5
Decision Date: 9/02/1996

CaseChat Overview and Summary

In the matter of the Crown versus Hargrave, the High Court of Australia was asked to consider the sentence imposed on the applicant, who was convicted of unlawful use of a motor vehicle, house-breaking and stealing. The case arose from a series of offences committed by the applicant when he was 18 years old. The applicant had a significant criminal history involving similar offences. The Crown sought to challenge the sentence, arguing that the 12-month imprisonment term for each count, suspended after four months with an operational period of three years, was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court was required to examine the principles of sentencing, particularly in relation to the cumulative effect of the sentences and the operation of the doctrine of totality. The court also had to consider the applicant's age at the time of the offences and his prior criminal history. In assessing the sentence, the court needed to determine if the trial judge had failed to give adequate weight to the totality principle and whether the sentence was disproportionate to the seriousness of the offences.

The High Court held that the sentence imposed by the trial judge was manifestly excessive. The court found that the trial judge had not properly applied the principle of totality, which requires that the cumulative effect of multiple sentences be taken into account to avoid excessive punishment. The court noted that the applicant was 18 years old at the time of the offences and had a significant history of similar offending. Despite this, the court observed that the sentence imposed was disproportionate to the seriousness of the offences and failed to adequately reflect the need for deterrence and rehabilitation. Consequently, the High Court allowed the appeal, quashed the sentences, and remitted the matter to the trial court for re-sentencing.

The final orders of the court were that the sentences imposed on the applicant be quashed and the matter be remitted to the trial court for re-sentencing, taking into account the principles of sentencing and the totality doctrine. The court did not specify a particular sentence but directed the trial court to ensure that any new sentence would be proportionate to the seriousness of the offences and would appropriately address the need for deterrence and rehabilitation, considering the applicant's age and criminal history.

Orders