R v Melville - [2009] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v Melville [2009] QCA 108

PARTIES:

R
v
MELVILLE, Edward Lee
(applicant/appellant)

FILE NO/S:

CA No 247 of 2008
DC No 158 of 2008
DC No 394 of 2008
DC No 395 of 2008
DC No 396 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

1 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2009

JUDGES:

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

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Allow the appeal.

3.    The sentence of nine months imprisonment for breach of suspended sentences is confirmed.

4. It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 258 days in pre-sentence custody between 1 October 2007 and 28 August 2008 be time already served under the sentence.

5.    The sentences imposed on indictments 158/08, 394/08 and 395/08 be set aside. In lieu thereof order that the applicant be imprisoned for the following periods:

Indictment 158/08:
Count 1: Entering premises and stealing: 6 months imprisonment
Count 2: Unlawful use of motor vehicle: 2 years imprisonment
Count 3: Burglary and stealing: 3 years 6 months imprisonment
Count 4: Burglary and stealing: 3 years 6 months imprisonment
Count 5: Attempted unlawful use of a motor vehicle: 2 years imprisonment
Count 6: Unlawful use of motor vehicle: 2 years imprisonment
Count 7: Wilful damage: 6 months imprisonment
Count 8: Burglary and stealing: 3 years 6 months imprisonment
Count 9: Burglary and stealing: 3 years 6 months imprisonment
Count 10: Unlawful use of a motor vehicle: 2 years imprisonment

Count 11: Dangerous Operation of a motor vehicle: 2 years imprisonment

Indictment 395/08

Count 1: Entering premises and stealing: 6 months imprisonment

Indictment 394/08
Count 1: Assault occasioning bodily harm in company: 12 months imprisonment
Count 2: Assault occasioning bodily harm in company: 12 months imprisonment

Count 3: Serious assault: 12 months imprisonment.

In respect of each of the summary offences, the sentences of four months imprisonment are confirmed.6.

The sentences of imprisonment on the counts on indictment 158/08 and 395/08 be concurrent with each other and with the terms of imprisonment of four months imposed in respect of the summary offences.7.

The sentences referred to in order 7 be served cumulatively with the term of imprisonment of nine months for breach of suspended sentences referred to in order 3.8.

The sentences of 12 months imprisonment in respect of each count on indictment 394/08 be concurrent with each other and cumulative with respect to the sentences referred to in orders 7 and 8.9.

The date the applicant is eligible for parole be fixed at 14 January 2010.10.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a total of…

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 Melville

Details

AGLC: R v Melville [2009] QCA 108
Case: [2009] QCA 108
Decision Date: 1 May 2009

CaseChat Overview and Summary

The appellant, Melville, pleaded guilty to 15 counts across three indictments, which included various property offences, breaches of suspended sentences, and assaults. The trial judge imposed concurrent sentences of four and a half years on each count, which was deemed to exceed the statutory maximums for some offences and was also criticised for not taking into account the appellant's pre-sentence custody and for setting the parole eligibility date too early. The appellant appealed against his sentence, arguing that the sentences were manifestly inadequate and that the parole eligibility date should be fixed at a later date. The appeal was heard in the Queensland Court of Appeal.

The court had to consider whether the sentence imposed was manifestly inadequate, whether the sentences were cumulative or concurrent, and whether the parole eligibility date was appropriate. The court noted that the appellant's criminal history and conduct whilst on bail, including assaulting police, warranted a severe response. However, the court found that the appellant's pre-sentence custody should be taken into account and that the sentences for the summary offences should be confirmed. The court also found that the sentences imposed on the various counts should be concurrent with each other and with the sentences for the summary offences, but cumulative with the sentence for breach of suspended sentences. Finally, the court found that the parole eligibility date should be fixed later than one third of the term of imprisonment.

The court granted leave to appeal and allowed the appeal. The sentence of nine months imprisonment for breach of suspended sentences was confirmed, and 258 days in pre-sentence custody were counted as time already served. The sentences imposed on the counts in indictments 158/08, 394/08 and 395/08 were set aside and replaced with the sentences set out in the orders. The sentences for the summary offences were confirmed. The sentences were to be served concurrently or cumulatively as set out in the orders, and the parole eligibility date was fixed at 14 January 2010.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Allow the appeal.

3. The sentence of nine months imprisonment for breach of suspended sentences is confirmed.

4. It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 258 days in pre-sentence custody between 1 October 2007 and 28 August 2008 be time already served under the sentence.

5. The sentences imposed on indictments 158/08, 394/08 and 395/08 be set aside. In lieu thereof order that the applicant be imprisoned for the following periods:

Indictment 158/08:

Count 1: Entering premises and stealing: 6 months imprisonment

Count 2: Unlawful use of motor vehicle: 2 years imprisonment

Count 3: Burglary and stealing: 3 years 6 months imprisonment

Count 4: Burglary and stealing: 3 years 6 months imprisonment

Count 5: Attempted unlawful use of a motor vehicle: 2 years imprisonment

Count 6: Unlawful use of motor vehicle: 2 years imprisonment

Count 7: Wilful damage: 6 months imprisonment

Count 8: Burglary and stealing: 3 years 6 months imprisonment

Count 9: Burglary and stealing: 3 years 6 months imprisonment

Count 10: Unlawful use of a motor vehicle: 2 years imprisonment

Count 11: Dangerous Operation of a motor vehicle: 2 years imprisonment

Indictment 395/08

Count 1: Entering premises and stealing: 6 months imprisonment

Indictment 394/08

Count 1: Assault occasioning bodily harm in company: 12 months imprisonment

Count 2: Assault occasioning bodily harm in company: 12 months imprisonment

Count 3: Serious assault: 12 months imprisonment.

In respect of each of the summary offences, the sentences of four months imprisonment are confirmed.6.

The sentences of imprisonment on the counts on indictment 158/08 and 395/08 be concurrent with each other and with the terms of imprisonment of four months imposed in respect of the summary offences.7.

The sentences referred to in order 7 be served cumulatively with the term of imprisonment of nine months for breach of suspended sentences referred to in order 3.8.

The sentences of 12 months imprisonment in respect of each count on indictment 394/08 be concurrent with each other and cumulative with respect to the sentences referred to in orders 7 and 8.9.

The date the applicant is eligible for parole be fixed at 14 January 2010.10.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Melville [2009] QCA 108
PARTIES:	R v MELVILLE, Edward Lee (applicant/appellant)
FILE NO/S:	CA No 247 of 2008 DC No 158 of 2008 DC No 394 of 2008 DC No 395 of 2008 DC No 396 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	1 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2009
JUDGES:	McMurdo P, Fraser JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Allow the appeal. 3. The sentence of nine months imprisonment for breach of suspended sentences is confirmed. 4. It is declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 258 days in pre-sentence custody between 1 October 2007 and 28 August 2008 be time already served under the sentence. 5. The sentences imposed on indictments 158/08, 394/08 and 395/08 be set aside. In lieu thereof order that the applicant be imprisoned for the following periods: Indictment 158/08: Count 1: Entering premises and stealing: 6 months imprisonment Count 2: Unlawful use of motor vehicle: 2 years imprisonment Count 3: Burglary and stealing: 3 years 6 months imprisonment Count 4: Burglary and stealing: 3 years 6 months imprisonment Count 5: Attempted unlawful use of a motor vehicle: 2 years imprisonment Count 6: Unlawful use of motor vehicle: 2 years imprisonment Count 7: Wilful damage: 6 months imprisonment Count 8: Burglary and stealing: 3 years 6 months imprisonment Count 9: Burglary and stealing: 3 years 6 months imprisonment Count 10: Unlawful use of a motor vehicle: 2 years imprisonment Count 11: Dangerous Operation of a motor vehicle: 2 years imprisonment Indictment 395/08 Count 1: Entering premises and stealing: 6 months imprisonment Indictment 394/08 Count 1: Assault occasioning bodily harm in company: 12 months imprisonment Count 2: Assault occasioning bodily harm in company: 12 months imprisonment Count 3: Serious assault: 12 months imprisonment. In respect of each of the summary offences, the sentences of four months imprisonment are confirmed.6. The sentences of imprisonment on the counts on indictment 158/08 and 395/08 be concurrent with each other and with the terms of imprisonment of four months imposed in respect of the summary offences.7. The sentences referred to in order 7 be served cumulatively with the term of imprisonment of nine months for breach of suspended sentences referred to in order 3.8. The sentences of 12 months imprisonment in respect of each count on indictment 394/08 be concurrent with each other and cumulative with respect to the sentences referred to in orders 7 and 8.9. The date the applicant is eligible for parole be fixed at 14 January 2010.10.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a total of…