R v McGregor & Payne - [2002] QCA 334

[2002] QCA 334

COURT OF APPEAL

McMURDO P
JERRARD JA
ATKINSON J

CA No 92 of 2002
CA No 97 of 2002

THE QUEEN

IAN ROSS McGREGOR and
ALAN GRATTAN PAYNE Applicants

BRISBANE

..DATE 02/09/2002

JUDGMENT

THE PRESIDENT: The applicants each pleaded guilty to one count of burglary in company, one count of assault occasioning bodily harm in company and two counts of unlawful use of a motor vehicle. McGregor also pleaded guilty to one count of demanding property with menaces. They were sentenced to two and a half years' imprisonment on the burglary in company count and to lesser concurrent sentences on the remaining charges.

Two other co-offenders, Michelle Kruger and Donna Maree Dakin, also pleaded guilty to entering a dwelling with intent whilst armed and in company, unlawful assault and two counts of unlawful use of a motor vehicle. Dakin also pleaded guilty to an additional count of demanding property with menaces. Dakin and Kruger were sentenced to six months' imprisonment and two years probation for the burglary offence and to lesser concurrent terms of importance on the remaining counts. Not surprisingly Kruger and Dakin have not appealed or not applied for leave to appeal against their sentences.

All four offenders pleaded guilty on the morning of the trial in front of the large jury panel assembled for that purpose in Dalby. Nevertheless the plea was accepted as an early plea in the circumstances because the charges on the indictments to which the offenders pleaded were only settled that morning and this was the first arraignment of the offenders.

The factual situation is quite complex. The complainants, Mr Ruddick and his partner Ms Bryant, were living in a farmhouse three kilometres outside Warra. The house was half a kilometre from the road and had no telephone. Mr Ruddick knew Payne, Dakin and Kruger. A man called Alan Cornack rented a house with Payne near Warra. Cornack owed Payne money and it was agreed that Cornack would give his Yamaha motor cycle to Ruddick and in return Ruddick would repay Payne for Cornack's debt. Ruddick took possession of Cornack's motor bike.

Ruddick's partner, Ms Bryant, owned a blue Ford Falcon which Ruddick used as his own. Dakin owned a red Commodore. Payne borrowed the blue Ford Falcon so that Kruger and Dakin could move into Payne's residence and assist with the care of his two young children whilst he was away working. Kruger and Dakin left their red Commodore with Ruddick whilst they used Ruddick's blue Falcon. Kruger and Dakin's vehicle was quite badly damaged whilst in Ruddick's possession.

Payne's home was relatively isolated and had no telephone connected to it and Kruger and Dakin felt vulnerable without a reliable vehicle. Although Ruddick made some efforts to rectify the damage done to Dakin's vehicle, the major damage to the engine head was not rectified.

Kruger and Dakin requested Ruddick to repair the vehicle for about four weeks and they became involved in these offences out of frustration. There…

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 McGregor & Payne

Details

AGLC: R v McGregor and Payne [2002] QCA 334
Case: [2002] QCA 334
Decision Date: 02/09/2002

CaseChat Overview and Summary

The applicants, Ian Ross McGregor and Alan Grattan Payne, were convicted and sentenced in the District Court for various offences, including burglary in company, assault occasioning bodily harm in company, and unlawful use of a motor vehicle. McGregor additionally pleaded guilty to demanding property with menaces. The applicants appealed against their sentences of two and a half years' imprisonment on the burglary in company count and lesser concurrent sentences on the remaining charges. Their co-offenders, Michelle Kruger and Donna Maree Dakin, also pleaded guilty to related charges and received lesser sentences. The primary legal issues were whether the sentences imposed by the District Court were manifestly excessive and whether there was a justifiable sense of grievance due to the disparity in sentences between the applicants and their female co-offenders.

The Court of Appeal found that the applicants' criminal histories were more extensive than those of their co-offenders, and their involvement in the commission of the offences was more significant. The sentencing judge had valid reasons for distinguishing between the sentences imposed on the applicants and their co-offenders. Although slightly more credit could have been given for the applicants' pleas of guilty, the Court of Appeal was not persuaded that the sentences were manifestly excessive. The Court of Appeal held that the seriousness of the offences, which involved the applicants invading the complainants' home with threats and violence to settle their grievances, justified substantial periods of actual custody. The Court of Appeal therefore dismissed the applicants' appeal against sentence.

The final order of the Court of Appeal was that the application for leave to appeal against sentence was refused.

Orders