R v McDowall - [2005] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION:

R v McDowall [2005] QCA 260

PARTIES:

R
v
McDOWALL, Paul Matthew
(applicant)

FILE NO/S:

CA No 126 of 2005
DC No 599 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

26 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2005

JUDGES:

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

ORDER:

1. Application for leave to appeal against sentence
dismissed
2. A warrant issue for the apprehension of the applicant,
to lie in the registry for 24 hours

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 the applicant pleaded guilty to four counts of breaking, entering and stealing, two counts of receiving and one count of possessing things used in connection with unlawful entry – applicant sentenced to nine months imprisonment, suspended after serving one month with an operational period of two years – where applicant gave evidence against a drug supplier at committal proceedings – where one count of breaking, entering and stealing committed whilst on bail – whether sentence of short term of imprisonment manifestly excessive

R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, distinguished
R v Harch [2004] QCA 113; CA No 45 of 2004, 14 April 2004, followed
R v Wickham & Anor [1998] QCA 168; CA No 454 and 455 of 1997, 25 February 1998, followed

COUNSEL:

D J Walsh for the applicant
S G Bain for the respondent

SOLICITORS:

Bernard Bradley and Associates for the applicant
Director of Public Prosecutions (Qld) for the respondent

WILLIAMS JA: On 17 May 2005 the applicant pleaded guilty in the District Court to four counts of breaking, entering and stealing, two of receiving and one of possessing things used for obtaining unlawful entry. He was sentenced to nine months’ imprisonment to be suspended after serving one month with an operational period of two years. He seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

Particulars of the offences are as follows:

On 14 February 2004 the applicant broke and entered the premises of Acumen International Pty Ltd at Milton and stole a laptop valued at $900. Count 2 related to the break and enter of the premises of Euro Eyewear Pty Ltd at Albion on 28 March 2004. The door was smashed to obtain entry and the safe and its contents were stolen. $1,300 of cash was stolen, the safe was valued at $400 and there was $1000 damage to the door.

Counts 5 and 6 on the indictment related to events which occurred on 20 June 2004; then the applicant broke and entered the premises of Thrifty Car Rentals at Aspley…

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 McDowall

Details

AGLC: R v McDowall [2005] QCA 260
Case: [2005] QCA 260
Decision Date: 26 July 2005

CaseChat Overview and Summary

In the case of R v McDowall, the appellant was convicted of multiple offences, including breaking, entering, and stealing, receiving stolen property, and possessing tools used for unlawful entry. The appellant was sentenced to a term of nine months imprisonment, suspended after serving one month, with an operational period of two years. The appellant applied for leave to appeal against the sentence, arguing that the term of imprisonment was manifestly excessive. The court was required to determine whether the sentence was excessive and if the appellant should be granted leave to appeal.

The legal issue before the court was whether the sentence imposed was manifestly excessive, considering the appellant's guilty plea, cooperation with authorities, and the fact that one of the offences was committed while on bail. The court considered the principles of sentencing and the circumstances of the case, including the appellant's background and the nature of the offences. The court held that the sentence was not manifestly excessive, taking into account the appellant's cooperation with authorities and the need for general deterrence.

The court dismissed the application for leave to appeal against the sentence, finding that it was not manifestly excessive. The court emphasised the importance of the appellant's cooperation with authorities and the need for general deterrence. The court also noted that the appellant had committed an offence while on bail, which warranted a sentence that reflected the seriousness of the breach of trust. The court held that the sentence was appropriate and not manifestly excessive.

The court issued a warrant for the apprehension of the appellant, to lie in the registry for 24 hours. The warrant was issued to ensure that the appellant complied with the sentence imposed. The court's decision in this case highlights the importance of considering the circumstances of the case and the need for general deterrence when imposing a sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence

dismissed

2. A warrant issue for the apprehension of the applicant,

to lie in the registry for 24 hours

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 McDowall [2005] QCA 260
PARTIES:	R v McDOWALL, Paul Matthew (applicant)
FILE NO/S:	CA No 126 of 2005 DC No 599 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	26 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2005
JUDGES:	McPherson, Williams and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	1. Application for leave to appeal against sentence dismissed 2. A warrant issue for the apprehension of the applicant, to lie in the registry for 24 hours
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 the applicant pleaded guilty to four counts of breaking, entering and stealing, two counts of receiving and one count of possessing things used in connection with unlawful entry – applicant sentenced to nine months imprisonment, suspended after serving one month with an operational period of two years – where applicant gave evidence against a drug supplier at committal proceedings – where one count of breaking, entering and stealing committed whilst on bail – whether sentence of short term of imprisonment manifestly excessive R v Hamilton [2000] QCA 286; CA No 75 of 2000, 21 July 2000, distinguished R v Harch [2004] QCA 113; CA No 45 of 2004, 14 April 2004, followed R v Wickham & Anor [1998] QCA 168; CA No 454 and 455 of 1997, 25 February 1998, followed
COUNSEL:	D J Walsh for the applicant S G Bain for the respondent
SOLICITORS:	Bernard Bradley and Associates for the applicant Director of Public Prosecutions (Qld) for the respondent