R v Hoeksema - [2010] QCA 357

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hoeksema [2010] QCA 357

PARTIES:

R
v
HOEKSEMA, Jamie Rodney
(appellant/applicant)

FILE NOS:

CA No 147 of 2010
DC No 600 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2010

JUDGES:

Margaret McMurdo P, Holmes JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The application for leave to appeal against sentence is allowed.

2.    The appeal is allowed.

3.    The sentences imposed on 4 June 2010 (as amended on 24 June 2010) are set aside, and are substituted in respect of each offence by an order that the appellant be sentenced to two years imprisonment, those sentences to be served concurrently with one another and concurrently with the sentences of imprisonment imposed in the District Court on 11 April 2008.

4.    The date the appellant is eligible for parole be fixed at 4 June 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial by jury of two counts of receiving stolen property – where the applicant was found with stolen property in his possession including three mobile phones, a torch, gloves, a knife, a laptop, a power tool, a handbag, a satchel of jewellery, a wallet and a sum of money – where the applicant was relatively young and had a notable criminal history – where the applicant was sentenced to three years imprisonment on each count, to be served concurrently – where those sentences were also to be served concurrently with a term of imprisonment which the applicant was then serving – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECTS OF SENTENCE ON IMPRISONMENT OF PRISONER – where the applicant was sentenced to three years imprisonment on each count, to be served concurrently – where those sentences were also to be served concurrently with a term of imprisonment which the applicant was then serving – whether the learned sentencing judge had erred in failing to properly consider the period of imprisonment which the applicant would be required to serve when determining the appropriate parole eligibility date

Penalties and Sentences Act 1992 (Qld), s 160C, s 160E,
s 160F(2)

R v Aston-Brien[2004] QCA 23, distinguished
R v Evans[2010] QCA 30, cited
R v Misura[1994] QCA 181, distinguished
R v Whelan[2010] QCA 12, cited

COUNSEL:

S Ryan for the appellant/applicant
D L Meredith for the respondent

SOLICITORS:

Legal Aid (Queensland) for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] MARGARET McMURDO P: I agree with Daubney J’s reasons for granting the application for leave to appeal and allowing 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: [2010] QCA 357
Decision Date: 17 December 2010

CaseChat Overview and Summary

The case of R v Hoeksema was heard by the Court of Appeal, where the applicant, Hoeksema, appealed against his sentence for two counts of receiving stolen property. The applicant was found in possession of various stolen items including mobile phones, a torch, gloves, a knife, a laptop, a power tool, a handbag, a satchel of jewellery, a wallet, and a sum of money. The sentencing judge imposed a three-year imprisonment term for each count, to be served concurrently, as well as concurrently with the sentence the applicant was already serving. The applicant argued that the sentence was manifestly excessive and that the learned sentencing judge had failed to properly consider the total period of imprisonment when determining the parole eligibility date.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had erred in not considering the full period of imprisonment when setting the parole eligibility date. The applicant argued that the sentence was excessively harsh given his relatively young age and prior criminal history. Additionally, the applicant contended that the sentencing judge had overlooked the total imprisonment period, resulting in an inappropriate parole eligibility date.

The Court of Appeal found that the sentence imposed was indeed manifestly excessive. The court considered the totality of the applicant's criminal history, his age, and the nature of the current offences. The Court found that the sentencing judge had failed to consider the full period of imprisonment when determining the parole eligibility date. As a result, the court reduced the sentences to two years imprisonment for each offence, to be served concurrently with one another and concurrently with the sentences imposed in the District Court. The Court also fixed the parole eligibility date at 4 June 2011.

The Court of Appeal allowed the applicant's appeal against sentence, set aside the original sentences, and substituted them with the revised sentences and parole eligibility date.

Orders

Orders of the court

1. The application for leave to appeal against sentence is allowed.

2. The appeal is allowed.

3. The sentences imposed on 4 June 2010 (as amended on 24 June 2010) are set aside, and are substituted in respect of each offence by an order that the appellant be sentenced to two years imprisonment, those sentences to be served concurrently with one another and concurrently with the sentences of imprisonment imposed in the District Court on 11 April 2008.

4. The date the appellant is eligible for parole be fixed at 4 June 2011.

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 Hoeksema [2010] QCA 357
PARTIES:	R v HOEKSEMA, Jamie Rodney (appellant/applicant)
FILE NOS:	CA No 147 of 2010 DC No 600 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2010
JUDGES:	Margaret McMurdo P, Holmes JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is allowed. 2. The appeal is allowed. 3. The sentences imposed on 4 June 2010 (as amended on 24 June 2010) are set aside, and are substituted in respect of each offence by an order that the appellant be sentenced to two years imprisonment, those sentences to be served concurrently with one another and concurrently with the sentences of imprisonment imposed in the District Court on 11 April 2008. 4. The date the appellant is eligible for parole be fixed at 4 June 2011.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial by jury of two counts of receiving stolen property – where the applicant was found with stolen property in his possession including three mobile phones, a torch, gloves, a knife, a laptop, a power tool, a handbag, a satchel of jewellery, a wallet and a sum of money – where the applicant was relatively young and had a notable criminal history – where the applicant was sentenced to three years imprisonment on each count, to be served concurrently – where those sentences were also to be served concurrently with a term of imprisonment which the applicant was then serving – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECTS OF SENTENCE ON IMPRISONMENT OF PRISONER – where the applicant was sentenced to three years imprisonment on each count, to be served concurrently – where those sentences were also to be served concurrently with a term of imprisonment which the applicant was then serving – whether the learned sentencing judge had erred in failing to properly consider the period of imprisonment which the applicant would be required to serve when determining the appropriate parole eligibility date Penalties and Sentences Act 1992 (Qld), s 160C, s 160E, s 160F(2) R v Aston-Brien[2004] QCA 23, distinguished R v Evans[2010] QCA 30, cited R v Misura[1994] QCA 181, distinguished R v Whelan[2010] QCA 12, cited
COUNSEL:	S Ryan for the appellant/applicant D L Meredith for the respondent
SOLICITORS:	Legal Aid (Queensland) for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent