R v Josey; ex parte - [2003] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:
R v Josey; ex parte A-G (Qld) [2003] QCA 44

PARTIES:
R
v
JOSEY, Michael Keith
(respondent/applicant)
EX PARTE ATTORNEY GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:
CA No 1 of 2003
CA No 32 of 2003
DC No 2766 of 2002
DC No 2767 of 2002

DIVISION:
Court of Appeal

PROCEEDING: Application for Extension (sentence)
Appeal against sentence by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

17 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2003

JUDGES:

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

ORDERS:
Application for extension of time to appeal sentence struck out
Appeal against sentence dismissed

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - where application for extension of time to apply for leave to appeal abandoned

CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE - where respondent convicted of a number of housebreaking and property offences - whether the sentence imposed was manifestly inadequate –whether learned sentencing judge gave too much weight to factors of mitigation

Penalties and Sentences Act 1992 (Qld) s 189, s 161
R v Kavanagh [1993] QCA 159; CA No 64 of 1993, 5 April 1993, distinguished
R v Kunst [2002] QCA 400; CA No 120 of 2002, 4 October 2002, considered
R v Savo [1994] QCA 513; CA No 334 of 1994, 25 October 1994, distinguished
R v Whelan [1998] QCA 151; CA No 430 of 1997, 17 March 1998, applied

COUNSEL:
R East for the respondent/applicant
D L Meredith for the appellant

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

THE PRESIDENT: The application for extension of time to apply for leave to appeal against sentence has been abandoned and is struck out.

...

THE PRESIDENT: The appellant pleaded guilty on the 11th of December 2002 in the Brisbane District Court to a large number of property offences contained in two ex-officio indictments and a schedule of offences under s 189 of the Penalties andSentences Act 1992 (Qld).

The two count indictment included the offences of entering a dwelling and stealing and unlawful use of a motor vehicle. The 16 count indictment contained one count of attempted entering premises with intent; seven counts of entering a dwelling and committing an indictable offence; two counts of unlawful use of a motor vehicle; two counts of stealing; one count of escaping lawful custody; one count of destroying evidence; and two counts of fraud.

The section 189 schedule related to 52 counts of burglary, burglary and steal or housebreaking and steal; two counts of unlawful entry of a motor vehicle; 22 counts of stealing;
3 counts of fraud; 34 counts of entering a dwelling and stealing; entering a dwelling and committing an indictable offence or entering a dwelling with intent; two…

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 Josey; ex parte

Details

AGLC: R v Josey; ex parte [2003] QCA 44
Case: [2003] QCA 44
Decision Date: 17 February 2003

CaseChat Overview and Summary

In this case, the respondent, Josey, was convicted of a series of housebreaking and property offences. The Attorney-General, on behalf of the Crown, filed an appeal against the sentence imposed on Josey, contending that it was manifestly inadequate. The primary issue before the court was whether the sentencing judge had appropriately considered the aggravating and mitigating factors in arriving at the sentence. Specifically, the Crown argued that the sentence was too lenient and that the learned sentencing judge had disproportionately weighted the mitigating factors in favour of the respondent.

The court examined the sentencing remarks and the overall circumstances of the case to determine if the sentence imposed was manifestly inadequate. It was noted that the sentencing judge had indeed considered both the aggravating and mitigating factors, albeit with a particular emphasis on the latter. The Crown contended that the mitigating factors did not warrant such significant weight, suggesting that the sentence should have been harsher. However, the court found that the sentencing judge had acted within the bounds of judicial discretion and had provided adequate reasoning for the sentence imposed. The court held that the sentence was not manifestly inadequate and that the learned sentencing judge had not erred in the way they weighed the mitigating factors.

Consequently, the application for an extension of time to appeal the sentence was struck out, and the appeal against the sentence was dismissed. The court upheld the original sentence, affirming that the sentencing judge's decision was lawful and appropriately balanced the various factors considered during sentencing.

Orders

Orders of the court

Application for extension of time to appeal sentence struck out

Appeal against sentence dismissed

Background

Background to the litigation

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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 Josey; ex parte A-G (Qld) [2003] QCA 44
PARTIES:	R v JOSEY, Michael Keith (respondent/applicant) EX PARTE ATTORNEY GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 1 of 2003 CA No 32 of 2003 DC No 2766 of 2002 DC No 2767 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (sentence) Appeal against sentence by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	17 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2003
JUDGES:	McMurdo P, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for extension of time to appeal sentence struck out Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - where application for extension of time to apply for leave to appeal abandoned CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATIONS TO INCREASE SENTENCE - where respondent convicted of a number of housebreaking and property offences - whether the sentence imposed was manifestly inadequate –whether learned sentencing judge gave too much weight to factors of mitigation Penalties and Sentences Act 1992 (Qld) s 189, s 161 R v Kavanagh [1993] QCA 159; CA No 64 of 1993, 5 April 1993, distinguished R v Kunst [2002] QCA 400; CA No 120 of 2002, 4 October 2002, considered R v Savo [1994] QCA 513; CA No 334 of 1994, 25 October 1994, distinguished R v Whelan [1998] QCA 151; CA No 430 of 1997, 17 March 1998, applied
COUNSEL:	R East for the respondent/applicant D L Meredith for the appellant
SOLICITORS:	Legal Aid Queensland for the respondent/applicant Director of Public Prosecutions (Queensland) for the applicant