R v Ho; ex parte - [2000] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION: R v Ho; ex parte A-G [2000] QCA 283

PARTIES: R
v
HO, Peter Shui Kai
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S: CA No 114 of 2000
DC No 906 of 2000

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 21 July 2000

DELIVERED AT: Brisbane

HEARING DATE: 4 July 2000

JUDGES: McPherson, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
1.Appeal allowed.

2.Set aside sentences imposed below.

3.Impose, in lieu, sentences of 18 months imprisonment in respect of counts 1, 5, 7 and 9 and sentences of six months imprisonment on each of the other counts.

4.Order that the sentences referred to be served concurrently with one another and with the sentence the balance of which the respondent is now serving.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – sentence appeal by Attorney-General – respondent pleaded guilty to 10 offences comprised of making documents without authority, uttering and forgery – effectively sentenced to 18 months imprisonment wholly suspended for an operational period of four years – offences committed whilst on parole for prior offences of armed robbery in company and kidnapping for ransom – consideration of mitigating factors where guarantee and indemnity signed without authority – where imposition of custodial sentence automatically cancelled respondent's parole for prior offences pursuant to s 187(1) Corrective Services Act – whether this factor was given too much weight by the learned sentencing judge in imposing a non-custodial sentence – whether the sentence was manifestly inadequate

Corrective Services Act 1988 (Qld), s 166(1)(d), s 187(1), s 187(2)(e)
Penalties and Sentences Act 1992 (Qld), s 157(2), s 157(3)(a)
Property Law Act 1974 (Qld), s 56

R v Doyle [1996] 1 QdR 407, considered
R v Gant [1999] QCA 497; CA No 361 of 1999, 30 November 1999; considered
R v Huber CA No 23 of 1995, 16 March 1995, considered

COUNSEL: R G Martin for appellant
G P Long for respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for respondent
Crouch & Lyndon for respondent

McPHERSON JA: I agree with the orders proposed by Davies JA in disposing of this appeal; but wish to add two comments with respect to the circumstances of the offence, and the form of the sentence now being imposed. As regards the latter, counsel for the Attorney-General sought a sentence to run concurrently with the balance of the sentence that will now have to be served by the respondent in consequence of the breach of his parole. We were not asked to make the sentence now being imposed cumulative on that earlier sentence.

The other point is that I do not, with respect, agree with the…

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.

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Details

Case: [2000] QCA 283
Decision Date: 21 July 2000

CaseChat Overview and Summary

In the matter of R v Ho, the respondent, an individual with a history of criminal activity, faced a legal challenge concerning the adequacy of his sentence. Ho pleaded guilty to a series of offences, including making documents without authority, uttering, and forgery. He was sentenced to 18 months imprisonment, which was wholly suspended for a period of four years. The Attorney-General sought to appeal this sentence, arguing that it was manifestly inadequate given Ho's criminal history and the nature of the offences. Notably, Ho committed these offences while on parole for prior offences of armed robbery in company and kidnapping for ransom.

The legal issues central to this appeal revolved around the appropriateness of the sentence imposed by the sentencing judge. The key question was whether the learned judge had given undue weight to the mitigating factor that a custodial sentence would automatically cancel Ho's parole for his prior offences. Additionally, the court had to determine whether the non-custodial sentence was manifestly inadequate given Ho's criminal history and the gravity of his current offences. The Attorney-General argued that the sentence failed to adequately reflect the seriousness of Ho's conduct and to provide sufficient deterrence.

In considering these issues, the court examined the sentencing principles applicable to Ho's case. It noted that while the automatic cancellation of parole for prior offences was a relevant factor, it should not have been the sole determinant in imposing a non-custolal sentence. The court held that the learned sentencing judge had indeed placed too much weight on this factor, thereby resulting in a sentence that was manifestly inadequate. Consequently, the appeal was allowed, and the sentences were set aside. In their place, the court imposed sentences of 18 months imprisonment for certain counts and six months imprisonment for the others, to be served concurrently with the sentence Ho was already serving.

Orders

Orders of the court

1.Appeal allowed.

2.Set aside sentences imposed below.

3.Impose, in lieu, sentences of 18 months imprisonment in respect of counts 1, 5, 7 and 9 and sentences of six months imprisonment on each of the other counts.

4.Order that the sentences referred to be served concurrently with one another and with the sentence the balance of which the respondent is now serving.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ho; ex parte A-G [2000] QCA 283
PARTIES:	R v HO, Peter Shui Kai (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 114 of 2000 DC No 906 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 July 2000
DELIVERED AT:	Brisbane
HEARING DATE:	4 July 2000
JUDGES:	McPherson, Davies and Thomas JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1.Appeal allowed. 2.Set aside sentences imposed below. 3.Impose, in lieu, sentences of 18 months imprisonment in respect of counts 1, 5, 7 and 9 and sentences of six months imprisonment on each of the other counts. 4.Order that the sentences referred to be served concurrently with one another and with the sentence the balance of which the respondent is now serving.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – sentence appeal by Attorney-General – respondent pleaded guilty to 10 offences comprised of making documents without authority, uttering and forgery – effectively sentenced to 18 months imprisonment wholly suspended for an operational period of four years – offences committed whilst on parole for prior offences of armed robbery in company and kidnapping for ransom – consideration of mitigating factors where guarantee and indemnity signed without authority – where imposition of custodial sentence automatically cancelled respondent's parole for prior offences pursuant to s 187(1) Corrective Services Act – whether this factor was given too much weight by the learned sentencing judge in imposing a non-custodial sentence – whether the sentence was manifestly inadequate Corrective Services Act 1988 (Qld), s 166(1)(d), s 187(1), s 187(2)(e) Penalties and Sentences Act 1992 (Qld), s 157(2), s 157(3)(a) Property Law Act 1974 (Qld), s 56 R v Doyle [1996] 1 QdR 407, considered R v Gant [1999] QCA 497; CA No 361 of 1999, 30 November 1999; considered R v Huber CA No 23 of 1995, 16 March 1995, considered
COUNSEL:	R G Martin for appellant G P Long for respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for respondent Crouch & Lyndon for respondent