Williams and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Application refused
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 REFUSED – GENERALLY – where applicant convicted of armed robbery and sentenced to imprisonment for three years with a parole release date after nine months – whether sufficient weight given to applicant's cooperation with police, early guilty plea, remorse, and prospects of rehabilitation – whether sentence manifestly excessive
A J Kimmins, with D H James, for the applicant M J Copley for the respondent
SOLICITORS:
Greenhalgh Pickard Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent
WILLIAMS JA: I have read the reasons for judgment of Keane JA wherein the relevant facts are set out. I agree with his reasoning in concluding that the sentence was not manifestly excessive.
It was a significant aggravating factor that the applicant was on probation at the time he committed the armed robbery in question. At the time he committed the offence the applicant had a jumper over his head in an attempt to avoid identification, and he was armed with a knife. In those circumstances the learned sentencing judge did not err in concluding that the sentence had to include some time to be spent in actual custody.
Given the applicant's personal problems, which are detailed in the reasons for judgment of Keane JA, it was also appropriate to structure the sentence so that after serving some time in custody the applicant would be under supervision for a further period of time. Structuring the sentence so that the applicant spent nine months in custody followed by 27 months subject to parole ensured that the applicant would receive the supervision and support which will be necessary if he is to rehabilitate himself.
I agree that the application for leave to appeal against sentence should be dismissed.
KEANE JA: On 4 June 2007, the applicant was convicted…
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
AGLC
R v Lawley [2007] QCA 243
Case
[2007] QCA 243
Decision Date
CaseChat Overview and Summary
The appellant was convicted of armed robbery and sentenced to three years' imprisonment with a non-parole period of nine months. The appellant appealed against the sentence, arguing that the sentencing judge did not sufficiently consider his cooperation with the police, his early guilty plea, his remorse, and his prospects for rehabilitation. The court of appeal was required to determine whether the sentence was manifestly excessive and whether the sentencing judge failed to give appropriate weight to the appellant's mitigating factors.
The court of appeal noted that the appellant's cooperation with the police and his early guilty plea were significant factors in his favour. However, the court also noted that the appellant had a history of offending and had shown a lack of genuine remorse. The court found that the sentencing judge had appropriately considered the appellant's mitigating factors and that the sentence was not manifestly excessive. The court held that the appellant had not demonstrated that the sentence was unjust or inappropriate.
The court of appeal dismissed the appellant's appeal against sentence. The application to reduce the sentence was refused, and the original sentence stood.