R v Newton - [2011] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newton [2011] QCA 221

PARTIES:

R
v
NEWTON, Michelle Lee
(applicant)

FILE NO/S:

CA No 142 of 2011
DC No 231 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Orders delivered ex tempore 12 August 2011
Reasons delivered 6 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2011

JUDGES:

Margaret McMurdo P, White JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 12 August 2011:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed to the extent of setting aside the parole release date fixed at 2 October 2011 and substituting a parole release date fixed at 12 August 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment with a parole release date fixed after four months for robbery – where her co-accused was sentenced to four years imprisonment to be served concurrently with terms of imprisonment to which he was then serving suspended after 16 months – where the applicant's role in the robbery was limited to driving the co-accused away from the scene of the robbery – where the applicant had many mitigating factors – where the applicant contended her sentence failed to reflect her lesser culpability for the offence when compared to her co-accused and failed to take into account her guilty plea – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Sherman [2007] QCA 322, considered
R v Voysey [1992] QCA 321, considered

COUNSEL:

H C Fong for the applicant
P J McCarthy for the respondent

SOLICITORS:

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

MARGARET McMURDO P: The applicant, Michelle Lee Newton, pleaded guilty on 2 June 2011 in the Rockhampton District Court to robbery. She was jointly charged with Michael James Mostyn who also pleaded guilty that day. Mostyn was sentenced to four years imprisonment, to be served concurrently with terms of imprisonment to which he was then serving. His sentence was suspended after 16 months, that is, on 2 October 2012, with an operational period of four years. The applicant was sentenced to 18 months imprisonment with a parole release date fixed at 2 October 2011, that is, after four months. She applied for leave to appeal against her sentence, contending that it failed to sufficiently reflect her lesser culpability for the offence when compared to her co-accused; it was manifestly excessive; and that the judge failed to take into account her guilty…

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 Newton

Details

AGLC: R v Newton [2011] QCA 221
Case: [2011] QCA 221
Decision Date: 12 August 2011

CaseChat Overview and Summary

In the case of R v Newton, the applicant was convicted for her involvement in a robbery, for which she was sentenced to 18 months imprisonment. The applicant's co-accused was sentenced to a concurrent term of four years imprisonment, which was to run concurrently with other sentences he was already serving. The applicant's role in the robbery was limited to driving the co-accused away from the scene. The applicant sought leave to appeal against her sentence on the grounds that it was manifestly excessive when compared to the sentence of her co-accused, who had a more active role in the offence. The applicant also argued that her sentence did not take into account her guilty plea.

The legal issue before the court was whether the applicant's sentence was manifestly excessive or inadequate. The court had to consider the principles of sentencing and the circumstances of the case, including the applicant's role in the offence, her culpability, and her guilty plea. The court also had to consider the need to maintain public confidence in the criminal justice system and the need to ensure that sentences are proportionate to the gravity of the offence and the culpability of the offender.

The court found that the applicant's sentence was manifestly excessive in light of the circumstances of the case. The court noted that the applicant's role in the robbery was limited and that she had many mitigating factors, including her guilty plea. The court also noted that the co-accused, who had a more active role in the offence, was sentenced to a longer term of imprisonment. The court found that the applicant's sentence failed to reflect her lesser culpability for the offence and failed to take into account her guilty plea. The court allowed the appeal and set aside the parole release date fixed at 2 October 2011, substituting a parole release date fixed at 12 August 2011.

Orders

Orders of the court

Delivered ex tempore on 12 August 2011:

1. The application for leave to appeal against sentence is granted.

2. The appeal is allowed to the extent of setting aside the parole release date fixed at 2 October 2011 and substituting a parole release date fixed at 12 August 2011.

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 Newton [2011] QCA 221
PARTIES:	R v NEWTON, Michelle Lee (applicant)
FILE NO/S:	CA No 142 of 2011 DC No 231 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	Orders delivered ex tempore 12 August 2011 Reasons delivered 6 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2011
JUDGES:	Margaret McMurdo P, White JA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 12 August 2011: 1. The application for leave to appeal against sentence is granted. 2. The appeal is allowed to the extent of setting aside the parole release date fixed at 2 October 2011 and substituting a parole release date fixed at 12 August 2011.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment with a parole release date fixed after four months for robbery – where her co-accused was sentenced to four years imprisonment to be served concurrently with terms of imprisonment to which he was then serving suspended after 16 months – where the applicant's role in the robbery was limited to driving the co-accused away from the scene of the robbery – where the applicant had many mitigating factors – where the applicant contended her sentence failed to reflect her lesser culpability for the offence when compared to her co-accused and failed to take into account her guilty plea – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 13 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Sherman [2007] QCA 322, considered R v Voysey [1992] QCA 321, considered
COUNSEL:	H C Fong for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent