R v Lennon - [2005] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lennon [2005] QCA 10

PARTIES:

R
v
LENNON, Terry Kevin
(applicant)

FILE NO/S:

CA No 393 of 2004
DC No 161 of 2004
DC No 463 of 2004
DC No 464 of 2004
DC No 465 of 2004
DC No 466 of 2004
DC No 467 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED EX TEMPORE ON:

7 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2005

JUDGES:

McMurdo P, McPherson JA and Jerrard JA
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISIDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where applicant sentenced to a term of imprisonment with a recommendation for post-prison community based release four months less than the statutory eligibility date – where guilty plea entered on all offences – where applicant voluntarily informed authorities of involvement in offences that were not attributed to him – where applicant had a lengthy criminal history for like offences – where applicant committed a number of the offences whilst on bail – whether sentence manifestly excessive in all the circumstances – whether applicant given insufficient credit for mitigating matters

Penalties and Sentences Act 1992 (Qld), s 13

R v Faramus [1999] QCA 167, CA No 30 of 1999, 11 May 1999, considered

COUNSEL:

A W Moynihan for the applicant
M J Copley for the respondent

SOLICITORS:

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

THE PRESIDENT: Mr Lennon pleaded guilty in the District Court at Beenleigh to counts of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, break enter and steal, dangerous operation of a motor vehicle with a circumstance of aggravation, entering premises with intent to commit an indictable offence, unlawfully entering a motor vehicle with intent to commit an indictable offence in the night-time, four counts of burglary and fifteen counts of burglary and stealing. These 24 offences were contained in five indictments, four of which were presented ex officio. Mr Lennon was also dealt with for 11 summary offences for behaviour which included driving under the influence, unlicensed driving, failing to stop a vehicle, assaulting and obstructing police, breaching bail, failing to take reasonable care when disposing of a syringe and possession of tainted property, a bottle of perfume. He was sentenced to an effective term of four years imprisonment with a recommendation that he be eligible for post-prison community-based release after serving 20 months. Thirty-three days of pre-sentence custody was declared as time already served under the sentence and he was disqualified from holding a drivers license for three years. He contends that the effective sentence imposed, four years imprisonment with a recommendation for parole after 20 months, was manifestly excessive.

The offences occurred…

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 Lennon

Details

AGLC: R v Lennon [2005] QCA 10
Case: [2005] QCA 10
Decision Date: 7 February 2005

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Lennon, the applicant sought leave to appeal against the sentence imposed by the sentencing judge. The applicant had been found guilty of various offences and sentenced to a term of imprisonment with a recommendation for post-prison community-based release. The applicant argued that the sentence was manifestly excessive, considering certain mitigating factors, including his guilty plea on all charges and his voluntary disclosure of involvement in other offences that were not charged against him.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the various mitigating factors presented by the applicant. The court was required to consider whether the sentencing judge had given insufficient credit to the mitigating factors, particularly the applicant's guilty plea and voluntary disclosure, and whether these factors warranted a lesser sentence than the one imposed.

In examining the sentence, the court noted that the applicant had a lengthy criminal history for similar offences and had committed some of the current offences while on bail. The court found that the sentencing judge had adequately considered the mitigating factors, including the applicant's guilty plea and voluntary disclosure, and had balanced these against the aggravating factors. The court concluded that the sentence was not manifestly excessive, as it took into account the various mitigating factors and the applicant's criminal history. Therefore, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Lennon [2005] QCA 10
PARTIES:	R v LENNON, Terry Kevin (applicant)
FILE NO/S:	CA No 393 of 2004 DC No 161 of 2004 DC No 463 of 2004 DC No 464 of 2004 DC No 465 of 2004 DC No 466 of 2004 DC No 467 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX TEMPORE ON:	7 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2005
JUDGES:	McMurdo P, McPherson JA and Jerrard JA Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISIDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – where applicant sentenced to a term of imprisonment with a recommendation for post-prison community based release four months less than the statutory eligibility date – where guilty plea entered on all offences – where applicant voluntarily informed authorities of involvement in offences that were not attributed to him – where applicant had a lengthy criminal history for like offences – where applicant committed a number of the offences whilst on bail – whether sentence manifestly excessive in all the circumstances – whether applicant given insufficient credit for mitigating matters Penalties and Sentences Act 1992 (Qld), s 13 R v Faramus [1999] QCA 167, CA No 30 of 1999, 11 May 1999, considered
COUNSEL:	A W Moynihan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent