R v Hay - [2010] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v HAY [2010] QCA 107

PARTIES:

R
v
HAY
(applicant/appellant)

FILE NO/S:

CA No 169 of 2009
DC No 1240 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2010

JUDGES:

McMurdo P, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal is granted.1.

The appeal is allowed and the sentences imposed on counts 4, 5 and 6 are set aside.2.

Instead, on each of those counts, a sentence of seven years imprisonment is imposed.3.

The date that H is eligible for parole is fixed at 10 April 2011.4.

In all other respects, the sentence imposed at first instance is confirmed.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of stealing , one count of attempted armed robbery in company and three counts of armed robbery in company with personal violence – applicant sentenced to a total of eight years imprisonment with parole eligibility after three years – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – older co-offender had a more significant criminal history and offending was of greater magnitude – co-offender sentenced to nine and a half years imprisonment with parole eligibility after four and a half – whether applicant's sentence excessive considering co-offender's sentence

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - applicant undertook to give evidence against co-offenders and was sentenced pursuant to s 13A Penalties and Sentences Act 1992 (Qld) – whether applicant's sentence excessive considering cooperation with authorities

Penalties and Sentences Act 1992 (Qld), s 13A

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 cited
R v D & Attorney-General of Queensland[1995] QCA 332, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v M, unreported, District Court of Queensland, Judge Clare SC, Indictment No 2455 of 2008, 4 March 2009, considered
R v Salameh (1991) 55 A Crim R 384, cited
R v SBI [2009] QCA 73, cited
R v Thompson (1994) A Crim R 75; [1994] QCA 393, considered
R v X[2001] QCA 498, cited

COUNSEL:

J Malbon, with S Downes, for the appellant
M J Copley SC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondents

McMURDO P: The applicant, H, pleaded guilty on 19 June 2009 in the District Court at Brisbane to one count of…

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 Hay

Details

AGLC: R v Hay [2010] QCA 107
Case: [2010] QCA 107
Decision Date: 14 May 2010

CaseChat Overview and Summary

The applicant, who pleaded guilty to multiple serious offences, appealed against the sentence imposed by the lower court. The applicant was convicted of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, stealing, attempted armed robbery in company, and three counts of armed robbery in company with personal violence. The applicant was sentenced to a total of eight years imprisonment, with parole eligibility after three years. The appeal focused on whether the sentence was manifestly excessive.

The central legal issue in the appeal was whether the sentence imposed was manifestly excessive, taking into account various relevant factors. The applicant argued that the sentence was excessive when compared to the sentence given to a co-offender, who had a more significant criminal history and was involved in more severe offending. Additionally, the applicant had undertaken to give evidence against the co-offenders, and was sentenced pursuant to a specific section of the Penalties and Sentences Act 1992 (Qld). The court had to determine whether the applicant's sentence was excessive in light of these factors.

The court found that the sentence imposed was manifestly excessive. The court acknowledged that the co-offender had a more significant criminal history and that the offending was of greater magnitude, yet the co-offender received a longer sentence. The court also considered the applicant's cooperation with authorities, which was a mitigating factor. Based on these considerations, the court concluded that the sentence was manifestly excessive. The appeal was allowed, and the sentences imposed on counts 4, 5, and 6 were set aside. Instead, a sentence of seven years imprisonment was imposed on each of those counts, with parole eligibility fixed at 10 April 2011. The sentence imposed at first instance was confirmed in all other respects.

Orders

Orders of the court

The application for leave to appeal is granted.1.

The appeal is allowed and the sentences imposed on counts 4, 5 and 6 are set aside.2.

Instead, on each of those counts, a sentence of seven years imprisonment is imposed.3.

The date that H is eligible for parole is fixed at 10 April 2011.4.

In all other respects, the sentence imposed at first instance is confirmed.5.

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 HAY [2010] QCA 107
PARTIES:	R v HAY (applicant/appellant)
FILE NO/S:	CA No 169 of 2009 DC No 1240 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2010
JUDGES:	McMurdo P, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal is granted.1. The appeal is allowed and the sentences imposed on counts 4, 5 and 6 are set aside.2. Instead, on each of those counts, a sentence of seven years imprisonment is imposed.3. The date that H is eligible for parole is fixed at 10 April 2011.4. In all other respects, the sentence imposed at first instance is confirmed.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of stealing , one count of attempted armed robbery in company and three counts of armed robbery in company with personal violence – applicant sentenced to a total of eight years imprisonment with parole eligibility after three years – whether the sentence imposed was manifestly excessive CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – older co-offender had a more significant criminal history and offending was of greater magnitude – co-offender sentenced to nine and a half years imprisonment with parole eligibility after four and a half – whether applicant's sentence excessive considering co-offender's sentence CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - applicant undertook to give evidence against co-offenders and was sentenced pursuant to s 13A Penalties and Sentences Act 1992 (Qld) – whether applicant's sentence excessive considering cooperation with authorities Penalties and Sentences Act 1992 (Qld), s 13A Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 cited R v D & Attorney-General of Queensland[1995] QCA 332, cited R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited R v M, unreported, District Court of Queensland, Judge Clare SC, Indictment No 2455 of 2008, 4 March 2009, considered R v Salameh (1991) 55 A Crim R 384, cited R v SBI [2009] QCA 73, cited R v Thompson (1994) A Crim R 75; [1994] QCA 393, considered R v X[2001] QCA 498, cited
COUNSEL:	J Malbon, with S Downes, for the appellant M J Copley SC for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for the respondents