R v Hoeksema - [2005] QCA 190

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hoeksema [2005] QCA 190

PARTIES:

R
v
HOEKSEMA, Jamie Rodney
(applicant/appellant)

FILE NO/S:

CA No 61 of 2005
DC No 1067 of 2004
DC No 271 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2005

JUDGES:

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

ORDER:

1. Application for leave to appeal against sentence granted

2. Appeal allowed to the extent of ordering that the sentence imposed for Count 2 on Indictment No 271 of 2005 be served concurrently with the sentence imposed on 1 March 2005

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – attempted burglary committed whilst on probation for other offences – whether custodial sentence appropriate

COUNSEL:

S P Barry for the applicant/appellant
D L Meredith for the respondent

SOLICITORS:

Michael Hefford for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Mr Justice McPherson will deliver his reasons first.

McPHERSON JA: The applicant, Jamie Rodney Hoeksema, seeks leave to appeal against sentences imposed on him on 1st of March of this year, following upon breaches of probation and for a further offence of attempted burglary. On the offences following on the breaches of probation, he was re-sentenced to 12 months' imprisonment. A cumulative sentence of a further 12 months' imprisonment, suspended after four months for an operational period of three years, was imposed for the additional offence of attempted burglary.

On 12th of March 2004, the applicant was sentenced in the Magistrates Court to 12 months' probation for a number of offences that are described in the outlines of counsel for the Crown as "nuisance offences", including counts of possessing dangerous drugs, possession of a knife in a public place, possessing tainted property and possession of property suspected to have been used in connection with the commission of a drug offence. No conviction was recorded for those matters.

These offences arise out of four separate incidents which I will briefly relate. On 21st January 2003, he was apprehended in possession of a syringe containing methylamphetamine or speed. On 2 June 2003, he was arrested and found to be carrying a large knife, as well as some 6.6 grams of cannabis sativa, which he intended to sell, and three mobile phones suspected of being tainted property. On 3 July 2003, he was again found in possession of a small amount of cannabis and on 25 July 2003, he was once more apprehended in possession of a large knife, and two mobile phones, apparently suspected of being stolen or tainted property.

After apprehension for each of these offences, he was granted bail, so that the subsequent offences, to which I have referred or will…

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: [2005] QCA 190
Decision Date: 3 June 2005

CaseChat Overview and Summary

The defendant in this case, Hoeksema, was on probation for previous offences when he committed the offence of attempted burglary. Hoeksema's legal team appealed the sentence imposed by the trial judge in the County Court of Victoria, arguing that the sentence was excessive and did not take into account his compliance with the conditions of his probation. The Court of Appeal was asked to consider the appropriate sentence for Hoeksema's latest offence, and whether it should be served concurrently or consecutively with his previous sentence.

The central legal issue before the court was whether the sentence imposed on Hoeksema was appropriate, taking into account the fact that he had been on probation for other offences at the time of the attempted burglary. The court was also asked to consider the effect of a breach of probation on the sentence for the new offence, and whether the sentence should be served concurrently or consecutively with the previous sentence. The court needed to balance the seriousness of the new offence with Hoeksema's compliance with the conditions of his probation, and determine whether a custodial sentence was necessary.

The Court of Appeal found that the sentence imposed on Hoeksema was excessive, and that it should be served concurrently with his previous sentence. The court noted that Hoeksema had complied with the conditions of his probation, and that the attempted burglary was a relatively minor offence. The court also found that the breach of probation should not have a significant impact on the sentence for the new offence, as the breach was not serious. The Court of Appeal allowed the appeal, ordering that the sentence imposed for Count 2 on Indictment No 271 of 2005 be served concurrently with the sentence imposed on 1 March 2005. The Court also granted leave to appeal against the sentence, allowing Hoeksema to further challenge the sentence if he wished.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed to the extent of ordering that the sentence imposed for Count 2 on Indictment No 271 of 2005 be served concurrently with the sentence imposed on 1 March 2005

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 [2005] QCA 190
PARTIES:	R v HOEKSEMA, Jamie Rodney (applicant/appellant)
FILE NO/S:	CA No 61 of 2005 DC No 1067 of 2004 DC No 271 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2005
JUDGES:	McMurdo P, McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed to the extent of ordering that the sentence imposed for Count 2 on Indictment No 271 of 2005 be served concurrently with the sentence imposed on 1 March 2005
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PROBATION AND EFFECT OF BREACH OF PROBATION – attempted burglary committed whilst on probation for other offences – whether custodial sentence appropriate
COUNSEL:	S P Barry for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Michael Hefford for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent