R v Inwood - [2005] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Inwood [2005] QCA 248

PARTIES:

R
v
INWOOD, Troy Anthony
(applicant/appellant)

FILE NO/S:

CA No 161 of 2005
DC No 1838 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

15 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2005

JUDGES:

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

ORDER:

1. Grant leave to appeal
2. Allow the appeal
3. Set aside the sentence of imprisonment for four
months, and in lieu thereof, order that the applicant be
imprisoned for 42 days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant breached the terms of his probation and community services order – where applicant re-sentenced for the original offence – term of four months imprisonment imposed – where the learned sentencing Judge imposed a higher penalty for the original offence on account of the indictable offences committed during the applicant’s probation period – whether the learned sentencing Judge wrongly exercised his sentencing discretion – whether the sentence imposed was manifestly excessive

COUNSEL:

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

SOLICITORS:

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

WILLIAMS JA: This is an application for leave to appeal against the sentence imposed on 3 June 2005 upon it being proved that the applicant had breached the terms of probation and community service orders originally imposed on 5 October 2004.

The District Court Judge decided to resentence for the original offence. He set aside all the orders originally imposed and sentenced the applicant to imprisonment for four months. As of today's date, he has served 42 days in custody.

The applicant was born on 31 May 1984, and just before his 19th birthday on 19 April 2003, he entered premises and stole a small sum of money.

Shortly before trial set for 5 October 2004 he pleaded guilty. It was established that in addition to the money stolen, he had caused damage to the premises in question. Primarily because of his age, and lack of significant prior criminal history, he was placed on probation for three years, ordered to perform 120 hours community service and separately ordered to pay by way of compensation for the damage to the premises and the money stolen, the total sum of $1,877.20, by 5 October 2005, in default, six months' imprisonment.

A perusal of the transcript of that original sentence indicates that the learned sentencing Judge was informed that at that time the applicant was "in custody on other charges."
Counsel for the prosecution stated there were "further charges of a like nature pending in the Beenleigh Magistrates Court."

The applicant's counsel…

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 Inwood

Details

AGLC: R v Inwood [2005] QCA 248
Case: [2005] QCA 248
Decision Date: 15 July 2005

CaseChat Overview and Summary

In the matter of R v Inwood, the appellant sought to challenge the severity of a sentence imposed by the sentencing judge. The appellant had previously been convicted and sentenced to a term of imprisonment for a specific offence. However, while on probation and subject to a community services order, the appellant committed further indictable offences, leading to a breach of his probation conditions. As a result, the appellant was re-sentenced for the original offence, and the sentencing judge imposed a four-month imprisonment term. However, the appellant argued that the sentence was excessively harsh, as it took into account the indictable offences committed during the probation period.

The primary legal issue before the court was whether the learned sentencing judge had improperly exercised their discretion by imposing a higher penalty for the original offence based on the indictable offences committed during the probation period. Additionally, the court had to determine if the sentence imposed was manifestly excessive, given the circumstances of the case. The appellant contended that the sentencing judge had not adequately considered the mitigating factors and had imposed a sentence that was disproportionately severe.

The court, upon reviewing the case, found that the sentencing judge had indeed exercised their discretion in a manner that was not in accordance with the principles of sentencing. The court considered that the imposition of a higher penalty for the original offence due to the indictable offences during the probation period was not a valid basis for increasing the sentence. Furthermore, the court concluded that the four-month imprisonment term was manifestly excessive, as it did not adequately reflect the appellant's personal circumstances and mitigating factors. Consequently, the court granted leave to appeal, allowed the appeal, and set aside the four-month imprisonment sentence. In its place, the court ordered that the appellant be imprisoned for 42 days, reflecting a more proportionate and appropriate sentence in light of the circumstances of the case.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal

3. Set aside the sentence of imprisonment for four

months, and in lieu thereof, order that the applicant be

imprisoned for 42 days

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Inwood [2005] QCA 248
PARTIES:	R v INWOOD, Troy Anthony (applicant/appellant)
FILE NO/S:	CA No 161 of 2005 DC No 1838 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	15 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant leave to appeal 2. Allow the appeal 3. Set aside the sentence of imprisonment for four months, and in lieu thereof, order that the applicant be imprisoned for 42 days
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant breached the terms of his probation and community services order – where applicant re-sentenced for the original offence – term of four months imprisonment imposed – where the learned sentencing Judge imposed a higher penalty for the original offence on account of the indictable offences committed during the applicant’s probation period – whether the learned sentencing Judge wrongly exercised his sentencing discretion – whether the sentence imposed was manifestly excessive
COUNSEL:	S P Barry for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent