R v Howie - [2009] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v Howie [2009] QCA 50

PARTIES:

R
v
HOWIE, Leslie James
(applicant/appellant)

FILE NO/S:

CA No 229 of 2008
DC No 2149 of 2008
DC No 1018 of 2008
DC No 156 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2009

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentences imposed in the District Court for the burglary offences in count 5 of indictment 156 of 2008 and count 3 in indictment 2149 of 2008 of three years imprisonment.

4.   Order instead that, in respect of count 5 in indictment 156 of 2008, the appellant be sentenced to two years imprisonment to be suspended after serving eight months of that term for an operational period of three years; and in respect of count 3 in indictment 2149 of 2008 the appellant be sentenced to two years imprisonment.

5.   Set aside the parole release date fixed by the sentencing judge and instead fix a parole release date on 23 April 2009.

6.   Declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the six days spent in pre-sentence custody between 18 July 2007 and 23 July 2007 be deemed time already served under the sentence imposed in the District Court as varied by these orders.

7.   Otherwise confirm the sentences imposed in the District Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of burglary, seven counts of stealing and eight counts of fraud – where the applicant stole items from his family, girlfriend, flatmate and stores in order to feed his drug addiction – where the applicant had a prior conviction for stealing and fraud – where the applicant breached a 12 month probation order imposed for that prior conviction by committing some of the current offences – where the value of items stolen was low and where some of the items had been recovered by the applicant – where the applicant was sentenced to three years imprisonment with release on parole after 12 months for the burglary counts and lesser concurrent sentences for the stealing, fraud and breach of probation counts – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 419(4)
Penalties and Sentences Act 1992 (Qld), s 159A

R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, distinguished
R v Donald[2000] QCA 399, distinguished
R v Heath & Heath[1995] QCA 170, distinguished
R v Taylor[2007] QCA 214, applied

COUNSEL:

C L Morgan for the applicant
P F Rutledge for the respondent

SOLICITORS:

Legal…

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 Howie

Details

AGLC: R v Howie [2009] QCA 50
Case: [2009] QCA 50
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of R v Howie involved the appellant, who had pleaded guilty to various criminal offences, appealing against his sentence. The appellant was convicted of two counts of burglary, seven counts of stealing, and eight counts of fraud. The offences were committed to support his drug addiction, with the stolen items including personal belongings from family members, a girlfriend, a flatmate, and stores. The appellant had a prior conviction for similar offences and had breached a probation order by committing some of the current offences. The District Court sentenced the appellant to three years imprisonment for the burglary counts, with parole eligibility after 12 months, and lesser concurrent sentences for the other offences.

The legal issues before the court were whether the sentences imposed were manifestly excessive or inadequate. The appellant argued that the sentences were disproportionate given the low value of the stolen items and the fact that some items had been recovered. The court needed to determine if the sentence was excessive in light of the appellant's history, the nature of the crimes, and the circumstances surrounding them. The appeal hinged on whether the District Court had adequately considered the relevant factors and whether the sentence was appropriate in all the circumstances.

The court found that the sentences imposed for the burglary counts were manifestly excessive. The reasoning included the relatively low value of the stolen items and the appellant's personal circumstances, including his drug addiction. The court also noted the appellant's remorse and efforts to recover some of the stolen items. As a result, the appeal was allowed, and the sentences for the burglary offences were varied. The court ordered that the appellant be sentenced to two years imprisonment, to be suspended after serving eight months for one burglary count, and two years imprisonment for the other burglary count. The parole release date was also adjusted.

The final orders included granting leave to appeal against the sentence, allowing the appeal, and varying the sentences for the burglary offences. The court set aside the original sentences and imposed new sentences with specific parole release dates. Additionally, the court declared that time spent in pre-sentence custody should be counted towards the new sentence. The remaining sentences were confirmed as imposed by the District Court.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentences imposed in the District Court for the burglary offences in count 5 of indictment 156 of 2008 and count 3 in indictment 2149 of 2008 of three years imprisonment.

4. Order instead that, in respect of count 5 in indictment 156 of 2008, the appellant be sentenced to two years imprisonment to be suspended after serving eight months of that term for an operational period of three years; and in respect of count 3 in indictment 2149 of 2008 the appellant be sentenced to two years imprisonment.

5. Set aside the parole release date fixed by the sentencing judge and instead fix a parole release date on 23 April 2009.

6. Declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the six days spent in pre-sentence custody between 18 July 2007 and 23 July 2007 be deemed time already served under the sentence imposed in the District Court as varied by these orders.

7. Otherwise confirm the sentences imposed in the District Court.

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 Howie [2009] QCA 50
PARTIES:	R v HOWIE, Leslie James (applicant/appellant)
FILE NO/S:	CA No 229 of 2008 DC No 2149 of 2008 DC No 1018 of 2008 DC No 156 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2009
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentences imposed in the District Court for the burglary offences in count 5 of indictment 156 of 2008 and count 3 in indictment 2149 of 2008 of three years imprisonment. 4. Order instead that, in respect of count 5 in indictment 156 of 2008, the appellant be sentenced to two years imprisonment to be suspended after serving eight months of that term for an operational period of three years; and in respect of count 3 in indictment 2149 of 2008 the appellant be sentenced to two years imprisonment. 5. Set aside the parole release date fixed by the sentencing judge and instead fix a parole release date on 23 April 2009. 6. Declare pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the six days spent in pre-sentence custody between 18 July 2007 and 23 July 2007 be deemed time already served under the sentence imposed in the District Court as varied by these orders. 7. Otherwise confirm the sentences imposed in the District Court.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of burglary, seven counts of stealing and eight counts of fraud – where the applicant stole items from his family, girlfriend, flatmate and stores in order to feed his drug addiction – where the applicant had a prior conviction for stealing and fraud – where the applicant breached a 12 month probation order imposed for that prior conviction by committing some of the current offences – where the value of items stolen was low and where some of the items had been recovered by the applicant – where the applicant was sentenced to three years imprisonment with release on parole after 12 months for the burglary counts and lesser concurrent sentences for the stealing, fraud and breach of probation counts – whether sentence manifestly excessive Criminal Code 1899 (Qld), s 419(4) Penalties and Sentences Act 1992 (Qld), s 159A R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, distinguished R v Donald[2000] QCA 399, distinguished R v Heath & Heath[1995] QCA 170, distinguished R v Taylor[2007] QCA 214, applied
COUNSEL:	C L Morgan for the applicant P F Rutledge for the respondent
SOLICITORS:	Legal…