R v Heath and Heath - [1995] QCA 170

IN THE COURT OF APPEAL [1995] QCA 170

SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 97 of 1995 C.A. No. 98 of 1995

[R. v. Heath & Anor]

T H E Q U E E N

BARRY PHILLIP HEATH and
MICHAEL JOHN HEATH

Applicants

Pincus JA.
Moynihan J.
Ambrose J.

Judgment delivered 12/05/1995

Separate reasons for judgment of each member of the Court, all

c	oncurring as to the orders to be made.

1. Application for leave to appeal against sentences allowed.
Both sentences are set aside.
2. With respect to Barry Phillip Heath, the Court imposes a
sentence of two years imprisonment with a recommendation of
eligibility for parole after serving six months of that
sentence.
3. With respect to Michael John Heath, the Court imposes a
sentence of three years imprisonment with a recommendation of
eligibility for parole after serving 12 months of that sentence.

CATCHWORDS: SENTENCE APPEAL - contended that sentence was manifestly excessive - charge of breaking and entering with intent to commit an indictable offence therein - sentence imposed was 4 years imprisonment with eligibility for parole after 15 months for B.P. Heath and 4 years imprisonment with eligibility for parole after 18 months for M.J. Heath - each applicant had a criminal history of committing offences of dishonesty - early plea of guilty - opportunistic offence.

Counsel:	Mr H.W. Jones for the applicant B.P. Heath Mr S. Hamlyn-Harris for the applicant M.J. Heath
Solicitors:	Legal Aid Office for both applicants Director of Public Prosecutions for the respondent

Hearing date: 28 April 1995
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12/05/1995

I have had the advantage of reading the reasons for
judgment of Ambrose J with which I am in substantial agreement.
It seems to me clear enough that the sentence imposed on Barry
Phillip Heath was excessive. As Ambrose J points out, it was
not part of the Crown case that the offence ought to be viewed
other than as standing in isolation from any other intended or
contemplated criminal activity except to steal clothing from a
"Life Line" clothes bin, if one could be found. Barry Phillip
Heath was 25 years old when he committed the offence and had
never been sent to prison. His criminal record is not very
extensive and the offence for which he was sentenced on this
occasion was not, in the way the matter was presented to the
Court below, a particularly heinous one. In those circumstances
a sentence of 4 years imprisonment, as a first prison sentence,

must be regarded as excessive, both absolutely and in comparison

with the sentence imposed upon Michael John Health.

The correctness of the latter sentence is perhaps more arguable; Michael John Heath is eight years older than his brother and has a more substantial criminal record; but on consideration of the whole circumstances, I am of opinion that he too should have his sentence reduced. I agree with the orders proposed by Ambrose J.

R	EASONS FOR JUDGMENT -…

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 Heath and Heath

Details

AGLC: R v Heath and Heath [1995] QCA 170
Case: [1995] QCA 170
Decision Date: 12/05/1995

CaseChat Overview and Summary

The case of R v Heath and Heath before the Queensland Court of Appeal involved an appeal against the sentences imposed on Barry Phillip Heath and Michael John Heath. The applicants, who are brothers, were convicted of breaking and entering business premises at Caloundra with intent to commit an indictable offence. The legal issues before the Court were whether the sentences imposed by the sentencing judge were manifestly excessive, given the applicants' criminal history and the nature of the offence. The Crown argued that while the sentences were at the high end of an appropriate range, the recommendations for early parole made in each case resulted in the sentences not being manifestly excessive. The Court found that the sentences imposed were indeed excessive and granted leave to appeal. The Court of Appeal set aside the original sentences and imposed new sentences, with recommendations for early parole eligibility. The Court considered the applicants' criminal histories, their age, and the nature of the offence in determining the appropriate sentences. The Court concluded that the original sentences were manifestly excessive and imposed new sentences of two years imprisonment with a recommendation for parole eligibility after six months for Barry Phillip Heath and three years imprisonment with a recommendation for parole eligibility after 12 months for Michael John Heath.

The Court of Appeal set aside the original sentences imposed on Barry Phillip Heath and Michael John Heath and imposed new sentences, with recommendations for early parole eligibility. The Court of Appeal found that the original sentences were manifestly excessive, given the applicants' criminal histories, their age, and the nature of the offence. The Court considered the advantage to be derived by persons who enter an early plea with resultant saving of time and costs, and imposed new sentences accordingly. The Court concluded that the new sentences, with recommendations for early parole eligibility, were appropriate in the circumstances of the case. The Court of Appeal granted leave to appeal against the original sentences and imposed new sentences of two years imprisonment with a recommendation for parole eligibility after six months for Barry Phillip Heath and three years imprisonment with a recommendation for parole eligibility after 12 months for Michael John Heath.

Orders