R v Hawkins - [2011] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawkins [2011] QCA 322

PARTIES:

R
v
HAWKINS, Arthur Cyril
(applicant)

FILE NO/S:

CA No 256 of 2011
DC No 575 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2011

JUDGES:

Muir, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to the offence of dishonestly causing a pecuniary detriment to his mother-in-law with a circumstance of aggravation that the yield to the applicant was more than $30,000 – where applicant sentenced to two and a half years imprisonment with a parole release date after approximately 10 months – where applicant argues sentence is manifestly excessive, that sentencing judge gave too much weight to the fact that the applicant had not participated in a record of interview with police and gave insufficient weight to applicant’s co-operation with law enforcement agencies – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 408C
Penalties and Sentences Act 1992 (Qld), s 9(2)(c)(i), s 9(2)(e), s 9(2)(i)

R v Docherty[2009] QCA 379, considered
R v Hawkins[2011] QCA 173, cited
R v Hyatt[2011] QCA 55, cited
R v Jeffree [2010] QCA 47, considered
R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered R v Robinson; ex parte A-G (Qld)[2004] QCA 169, considered

COUNSEL:

A M Nelson for the applicant
S P Vasta for the respondent

SOLICITORS:

Taylaw Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application should be refused for the reasons given by White JA.

FRASER JA: I agree with the reasons for judgment of White JA and the order proposed by her Honour.

WHITE JA: On 12 May 2011 the applicant pleaded guilty that between 29 March 2005 and 24 March 2006 he dishonestly caused a pecuniary detriment to Evelyn Jean Powe with the circumstance of aggravation that he obtained more than $30,000.[1] He was sentenced on 12 May 2011 to imprisonment for three years suspended after nine months with an operational period of five years. The applicant sought leave to appeal that sentence on the grounds that it was manifestly excessive; that the sentencing judge erred in failing to determine the amount of the money fraudulently taken; and that he failed to take into account factors relevant to mitigation. At that sentence hearing (“the first sentence”) the quantum of the applicant’s fraud was contested. The prosecution case was that up to $86,502.21 was misappropriated while the applicant claimed that the limit of his culpability was $35,000. That issue was never resolved,…

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 Hawkins

Details

AGLC: R v Hawkins [2011] QCA 322
Case: [2011] QCA 322
Decision Date: 11 November 2011

CaseChat Overview and Summary

The applicant, Hawkins, appealed against his sentence, contending that it was manifestly excessive and that the sentencing judge had given undue weight to certain factors. The case was heard in the appellate court, which had to determine whether the sentence imposed was appropriate under the circumstances. The central issue was whether the sentence of two and a half years imprisonment, with parole eligibility after approximately 10 months, was manifestly excessive given the nature and circumstances of the offence.

The court considered whether the sentence was manifestly excessive and whether the sentencing judge had erred in weighing the factors relevant to the sentence. The applicant argued that the sentence was too severe, particularly because the judge had given too much weight to the applicant's failure to participate in a police interview and insufficient weight to his cooperation with law enforcement agencies. The court assessed the sentence in light of the offence's gravity, the aggravating factors, and the principles of sentencing.

Upon review, the court found that the sentence was not manifestly excessive. The court acknowledged the importance of the aggravating factors but held that the sentence was proportionate to the offence. The court also determined that the sentencing judge had appropriately balanced the relevant factors, including the applicant's cooperation, and did not commit a significant error in weighing these considerations. The appeal against the sentence was thus dismissed.

The court refused the applicant's application for leave to appeal against the sentence. The court found no basis to interfere with the sentence imposed, affirming that it was fair and appropriate given the circumstances of the case.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Hawkins [2011] QCA 322
PARTIES:	R v HAWKINS, Arthur Cyril (applicant)
FILE NO/S:	CA No 256 of 2011 DC No 575 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2011
JUDGES:	Muir, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to the offence of dishonestly causing a pecuniary detriment to his mother-in-law with a circumstance of aggravation that the yield to the applicant was more than $30,000 – where applicant sentenced to two and a half years imprisonment with a parole release date after approximately 10 months – where applicant argues sentence is manifestly excessive, that sentencing judge gave too much weight to the fact that the applicant had not participated in a record of interview with police and gave insufficient weight to applicant’s co-operation with law enforcement agencies – whether sentence was manifestly excessive Criminal Code 1899 (Qld), s 408C Penalties and Sentences Act 1992 (Qld), s 9(2)(c)(i), s 9(2)(e), s 9(2)(i) R v Docherty[2009] QCA 379, considered R v Hawkins[2011] QCA 173, cited R v Hyatt[2011] QCA 55, cited R v Jeffree [2010] QCA 47, considered R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered R v Robinson; ex parte A-G (Qld)[2004] QCA 169, considered
COUNSEL:	A M Nelson for the applicant S P Vasta for the respondent
SOLICITORS:	Taylaw Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent