R v Munt - [1999] QCA 141

IN THE COURT OF APPEAL [1999] QCA 141
SUPREME COURT OF QUEENSLAND
C.A. No. 444 of 1998
Brisbane
[R v. Munt]
THE QUEEN
v.
GAVIN NOEL MUNT
(Applicant)

Pincus J.A.
Thomas J.A.
Shepherdson J.

Judgment delivered 23 April 1999
Separate reasons for judgment of each member of the Court; Thomas J.A. and
Shepherdson J. concurring as to the orders made, Pincus J.A. dissenting in part.
APPLICATION FOR EXTENSION OF TIME TO APPEAL AGAINST CONVICTION
REFUSED.
APPLICATION FOR LEAVE TO EXTEND TIME TO APPEAL AGAINST
SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - sentence - whether parity principle should
be applied so as to reduce sentence.
Anderson (C.A. No. 90 of 1998, 11 September 1998)
Counsel: The applicant appeared on his own behalf.
Mr T Moynihan for the respondent.
Solicitors: The applicant appeared on his own behalf.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 24 February 1999.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 23 April 1999

The applicant, who represented himself at the hearing in this Court, filed a notice of application for an extension of time within which to give notice of appeal or notice of application for leave to appeal. The ground stated was that "I failed to be seen by solicitors at the Legal Aid Office until 17 November 1998, at which time I was out of the prescribed time limitation". This notice was received on 2 December 1998, the sentence having been imposed on 7 October 1998. In the Form III filed by the applicant notice is given that he desires to appeal against conviction and sentence; but the ground given relates only to sentence: "Sentence imposed in all the circumstances is manifestly excessive". We heard argument and reserved judgment on the basis that we would, if we extended time, go on to deal with the substance of the case.
The convictions after a trial were for three offences, breaking, entering and stealing; breaking and entering a dwelling house with intent; and stealing; the sentences imposed were 5 years, 5 years and 2½ years respectively. When the matter was called on in this Court the applicant complained that the sentence was unfair because he was innocent, meaning "set up". He alleged that the evidence against him was fabricated. He explained that on counsel's advice he gave no evidence in denial of the Crown case. The applicant told us in effect that he was convicted not because of any deficiency in his legal representation, but because the case against him was untrue.
In my opinion no basis appears for the making of an order extending the time within which to appeal against conviction. It appears from the applicant's explanation of his attack on the conviction that, to determine whether or not the conviction is good, it would be necessary to let in evidence from the applicant; as I have said, he gave no evidence at the trial setting out the facts underlying his assertion that the case against him was fabricated. In my opinion, only…

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 Munt

Details

AGLC: R v Munt [1999] QCA 141
Case: [1999] QCA 141
Decision Date: 23/04/1999

CaseChat Overview and Summary

In the case of R v Munt, the appellant, Munt, appealed against his sentence and sought an extension of time to appeal against his conviction. The court was required to determine whether the sentences imposed on Munt and another offender, Anderson, were commensurate with the criminality of the respective offenders, and whether the sentences were fair and just in the circumstances. The court also had to consider whether Munt's application for an extension of time to appeal against conviction should be granted.

The court found that the sentences imposed on Munt and Anderson were not entirely comparable due to the unique circumstances of each case. Munt was sentenced to five years for his involvement in the vending of stolen firearms, while Anderson was sentenced to six years for similar offences. The court observed that Anderson's sentence was significantly impacted by the reactivation of an earlier five-year term, which had a substantial overlap with his new sentence. Munt's total criminality and sentences were considered in relation to Anderson's, and it was found that the disparity between their sentences was not sufficient to warrant a reduction in Munt's sentence. The court also noted that Anderson's eligibility for parole would fall approximately eleven months later than Munt's, which was taken into account in the sentencing process.

The court granted the appeal and reduced Munt's sentences on the first two counts to 4 years from 7 October 1998, while confirming the sentences on the other counts. The application for an extension of time to appeal against conviction was refused. The court emphasised the importance of considering the totality of the criminality and sentences for each offender when assessing the fairness and justice of the sentences imposed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SHEPHERDSON J

I would grant the application so far as sentence is concerned, grant leave to appeal, and allow the appeal by reducing the sentences on the first two counts to 4 years from 7 October 1998; the sentences should be otherwise confirmed. The application for an extension of time to appeal against conviction should be refused. REASONS FOR JUDGMENT - THOMAS JA Judgment delivered 23 April 1999 I agree with what Pincus JA has written in relation to the application concerning an extension of time to appeal against conviction. In relation to sentence, having regard to the seriousness of the conduct and to the prior criminal record of the applicant, prima facie the five year sentence was appropriate. The only point which could possibly be raised against it is the question of parity with Anderson's sentence. Anderson was sentenced to six years, and Munt to five years, in recognition of the fact that Munt was less involved in the "vending" of the stolen firearms. I have the advantage of having read the draft reasons of Pincus JA in which a comparison is made of the differences between the respective head sentences and the terms of existing sentences which each offender was already serving at the time of his sentence. On this basis Anderson is seen to have been given an extra three years ten months while Munt is seen to have been given an extra four years eight and a half months. On the other hand Anderson's eligibility for parole would fall about eleven months later than Munt's. With respect I do not think that this is a satisfactory basis for a determination of disparity. Anderson's sentence was very much affected by the circumstance that his offence had reactivated the full balance of an earlier five year term, upon which he was on parole when the present offences were committed. Upon cancellation of parole he became obliged to serve the remaining two years and eight months of that sentence. In order to avoid the undue oppression that would arise, this court in Anderson's case (CA No 90 of 1998, 11 September 1998) deliberately framed a sentence with a substantial overlap between the old sentences and the new. Anderson's recent offences had already been the cause of considerable disadvantage to him before he was actually sentenced on them. For a valid comparison between Anderson's sentence and Munt's sentence to be made, the total criminality of each offender, and the total sentences of the court in respect of each offender need to be seen. Anderson's total criminality arose out of offences committed over two relatively short periods, namely 1992-1993, and 1995-1996. These consisted of an armed robbery in company and related offences in 1992, a breach of the Bail Act 1980 (Qld) (three months cumulative), his commission of the present offences on 4 March 1996, a variety of minor offences in 1996 (concurrent short term sentences) and his escape from legal custody in May 1997 (four months cumulative). At the date of his sentence on the present matters (27 February 1998) he had already served three and a half years, and his new sentence of six years was ordered to commence on that date. When the special direction concerning parole is taken into account, his overall sentence was nine and a half years, and the minimum period he would have to serve before becoming eligible to be considered for parole was six years and ten months.

Ratio Decidendi

Legal Principle Established

Established by: SHEPHERDSON J

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IN THE COURT OF APPEAL	[1999] QCA 141
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - sentence - whether parity principle should be applied so as to reduce sentence.
Anderson (C.A. No. 90 of 1998, 11 September 1998)
Counsel:	The applicant appeared on his own behalf. Mr T Moynihan for the respondent.
Solicitors:	The applicant appeared on his own behalf. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	24 February 1999.