R v Misura - [1994] QCA 181

IN THE COURT OF APPEAL [1994] QCA 181

SUPREME COURT OF QUEENSLAND

C.A. No. 91 of 1994

Brisbane
[R. v. Misura]

BETWEEN

T H E Q U E E N
v.
DAVID ALEXANDER MISURA

(Applicant)
Fitzgerald P.
McPherson J.A.
Shepherdson J.

Judgment delivered 31/05/94
Joint reasons for judgment by Fitzgerald P. and McPherson J.A.
Separate reasons by Shepherdson J. differing as to order.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IN RESPECT OF THE COUNT OF RECEIVING REDUCED TO 3 YEARS. ALL OTHER SENTENCES AND THE RECOMMENDATION FOR PAROLE TO REMAIN UNCHANGED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - RECEIVING - Whether head sentence of 6 years excessive - 20 years old - Extensive criminal record - Full time employment - Probation not previously successful.

Counsel:R. Lynch for the applicant

P. Callaghan for the respondent

Solicitors:

Legal Aid Office for the applicant

Director of Prosecutions for the respondent
Hearing Date: 20 May 1994

JOINT REASONS FOR JUDGMENT - FITZGERALD P. & McPHERSON J.A.

Judgment delivered the Thirty-First day of May 1994

This is an application for leave to appeal against sentences imposed on the applicant when he pleaded guilty in the District Court to a charge of receiving, two charges of unlawfully using motor vehicles, and to breaching a probation order. The concurrent sentences imposed were imprisonment for 6 years for the receiving; 2 years on each of the unlawful use charges; and six months in the case of the breach of probation.

The judge also made a recommendation that the applicant be considered for parole after serving 9 months of the sentence of imprisonment imposed in respect of the first three charges.
The circumstances of the offences can be briefly stated as follows. In the case of count 1, an amount of some $11,000 worth of stolen property was found at the applicant's residence including $7,500 worth of diamond rings, a video recorder, two battery guards, electrical converters, a wristwatch, and a camera. The applicant told police that these items had been brought to his residence by a friend about six days earlier and that he had agreed to sell them off in exchange for a commission. Count 2 was the first of the two motor vehicle offences. It was committed when the applicant took a Toyota hatchback, which was the property of his former girlfriend, from the driveway of her home. It was later involved in an accident and sustained damage to the extent of over $3,500.

With respect to count 3, which was the second motor vehicle offence, the applicant's fingerprints were found on a vehicle which had been parked at and then stolen from Victoria Park during the Exhibition in August 1991. It was later recovered in a damaged condition, the extent of the damage being assessed at some $10,000.

Count 4 arose from the applicant's being placed on probation for 2 years in January 1992 for an offence of breaking, entering and stealing. The probation was later extended by a further 2…

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

Case: [1994] QCA 181
Decision Date: 31/05/1994

CaseChat Overview and Summary

The case of R v Misura, heard in the Supreme Court of Queensland, involved an appeal against sentence by David Alexander Misura. Misura had been sentenced to a 6-year term of imprisonment for receiving stolen property, along with additional sentences for unlawful use of motor vehicles and breach of probation. The central issue before the Court of Appeal was whether the 6-year sentence for receiving was excessive.

The Court of Appeal considered the severity of Misura's prior criminal history and the fact that he had been unsuccessful with probation orders previously. Despite these factors, the Court noted that receiving is a serious offence, particularly when the stolen goods are of significant value. However, the Court found that the 6-year sentence for this first offence was excessively harsh compared to sentences imposed in similar cases involving older offenders and more valuable stolen property. This conclusion was supported by a comparative analysis of other cases, which revealed that Misura's sentence was significantly longer than those in comparable situations.

The Court of Appeal decided to allow the appeal and reduce the sentence for the receiving charge to 3 years, while maintaining the other sentences and the recommendation for parole after 9 months. The Court emphasized that while the offence of receiving was serious, the length of the sentence should reflect the broader context, including the offender's age, employment status, and prior unsuccessful attempts at rehabilitation. The outcome of the appeal thus aimed to strike a balance between the need for deterrence and the principles of proportionality and rehabilitation in sentencing.

Orders