R v Mundy - [2011] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mundy [2011] QCA 217

PARTIES:

R
v
MUNDY, Shane Lewis
(applicant)

FILE NO/S:

CA No 280 of 2010
DC No 964 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

2 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2011

JUDGES:

Muir and Fraser JJA and Margaret Wilson AJA
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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of breaking and entering premises and stealing – where the applicant and co-offenders broke into a gun shop and stole 55 firearms – where the theft was well planned and sophisticated – where most of the firearms have not been recovered and a number have been used in subsequent criminal activity – where the applicant participated in the offence to discharge a drug debt – where the applicant claimed he did not know the plan was to steal firearms until the offence was in progress – where the applicant’s role in the offence was as a lookout and carrier of weapons – where the applicant was sentenced to eight years imprisonment – whether the sentence is manifestly excessive in all the circumstances

R v Anderson[1998] QCA 272, distinguished
R v Bell[2002] QCA 321, distinguished
R v D [1996] 1 Qd R 363; [1995] QCA 329, applied
R v Meredith [2002] QCA 481, cited
R v Munt [1999] QCA 141, distinguished
R v Whelan[1998] QCA 151, considered

COUNSEL:

F Richards for the applicant
D Meredith for the respondent

SOLICITORS:

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

MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

FRASER JA: The applicant was found guilty by a jury after an eight day trial in the District Court of breaking and entering premises and stealing. On 26 August 2010 he was sentenced to imprisonment for eight years with a parole eligibility date fixed at 26 August 2014. On 9 February 2011 the Court extended time for the applicant to apply for leave to appeal against sentence until 17 November 2010. The ground of the proposed appeal is that the sentence is manifestly excessive in all the circumstances.

Circumstances of the offence

The applicant and other offenders broke into a gun shop at Ipswich in September 2007 and stole numerous firearms. They gained entry by cutting through the ceiling and steel mesh. The security alarms were disarmed and telephone cables were cut so that silent alarms could not be activated. A video surveillance system was removed and the hard drive was taken. No fingerprints were found by police at the premises. In all…

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 Mundy

Details

AGLC: R v Mundy [2011] QCA 217
Case: [2011] QCA 217
Decision Date: 2 September 2011

CaseChat Overview and Summary

In the case of R v Mundy, the applicant was convicted of breaking and entering premises and stealing. The applicant, alongside co-offenders, broke into a gun shop and stole 55 firearms. The theft was well-planned and sophisticated, and many of the stolen firearms have not been recovered, with some used in subsequent criminal activity. The applicant claimed he did not know the plan was to steal firearms until the offence was in progress and participated to discharge a drug debt. His role in the offence was as a lookout and carrier of weapons, and he was sentenced to eight years imprisonment. The applicant appealed against the sentence, claiming it was manifestly excessive in all the circumstances.

The legal issues before the court were whether the sentence imposed on the applicant was manifestly excessive or inadequate. The court was required to consider the nature and circumstances of the offence, the applicant's role and culpability, and the principles of sentencing and proportionality. The applicant argued that the sentence was manifestly excessive due to his limited involvement and the fact that he did not know the full extent of the plan until it was underway. The prosecution submitted that the severity of the crime and the danger posed to the public warranted a substantial custodial sentence.

The court considered the evidence and submissions and concluded that the sentence was not manifestly excessive. The court found that the offence was of considerable seriousness, involving a well-planned and sophisticated theft of a large number of firearms. The applicant's role, although not the most active, was significant in facilitating the crime. The court also considered the risk of harm to the community and the need for deterrence. The sentence was proportionate to the gravity of the offence and the applicant's culpability. The court refused the application for leave to appeal against the sentence.

The final orders of the court were that the application for leave to appeal against the sentence was refused. The applicant's conviction and sentence remained in place.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Mundy [2011] QCA 217
PARTIES:	R v MUNDY, Shane Lewis (applicant)
FILE NO/S:	CA No 280 of 2010 DC No 964 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	2 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 August 2011
JUDGES:	Muir and Fraser JJA and Margaret Wilson AJA 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 – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of breaking and entering premises and stealing – where the applicant and co-offenders broke into a gun shop and stole 55 firearms – where the theft was well planned and sophisticated – where most of the firearms have not been recovered and a number have been used in subsequent criminal activity – where the applicant participated in the offence to discharge a drug debt – where the applicant claimed he did not know the plan was to steal firearms until the offence was in progress – where the applicant’s role in the offence was as a lookout and carrier of weapons – where the applicant was sentenced to eight years imprisonment – whether the sentence is manifestly excessive in all the circumstances R v Anderson[1998] QCA 272, distinguished R v Bell[2002] QCA 321, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, applied R v Meredith [2002] QCA 481, cited R v Munt [1999] QCA 141, distinguished R v Whelan[1998] QCA 151, considered
COUNSEL:	F Richards for the applicant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent