R v Palmer - [2000] QCA 15

[R v PALMER]

[2000] QCA 15

COURT OF APPEAL

de JERSEY CJ
McMURDO P
BYRNE J

CA No 313 of 1999

THE QUEEN

ANDREW JOHN PALMER Applicant

BRISBANE

..DATE 07/02/2000

JUDGMENT

THE CHIEF JUSTICE: The applicant is a 29-year-old man. He pleaded guilty to a series of offences attracting various terms of imprisonment, the most substantial being 11 years coupled with a declaration that he was convicted of a serious violent offence.

The difficulty about the case is that the Judge appears to have taken the view, into which he was apparently led by the prosecutor, that the declaration would automatically follow for that offence were he sentenced to more than 10 yeas imprisonment. That was incorrect.

The applicant was relevantly charged under section 419 subsection 4 of the Criminal Code with entering a dwelling while in company and armed and stealing from an occupant with actual violence. The schedule to the Penalties and Sentences Act, to which part 9A relates, does not specify an offence under section 419 subsection 4. It refers most nearly to an offence of burglary under section 419.3B.

Section 419.1 establishes the basic offence of burglary, entering a dwelling with intent to commit an indictable offence. Subsection 3B adds circumstances of aggravation which, if established, elevate the maximum level of penalty to life imprisonment. But subsection 4 then goes on to create a quite separate offence in which the actual commission of an indictable offence following entry is involved.

The point of distinction was recognised in Miles, Court of Appeal 96 of 1999. The prosecutor addressed the Judge on the basis that for a sentence in excess of 10 years imprisonment the 80 per cent requirement would automatically apply.

The Judge's statement in sentencing the applicant, "It goes without saying that I must make the declaration" under part 9A, should probably be seen in that light. That is the basis upon which the Crown has responded to this application. Counsel for the Crown submitted now, however, that the penalty and declaration should, in any event stand.

The applicant contends that the sentences imposed upon him were manifestly excessive. He received three years' imprisonment for unlawfully wounding a fellow drinker at a hotel in Cairns. Taking offence at something the victim said the applicant broke off the end of a pool cue and thrust it into the victim's throat.

Three months later the applicant carried out the armed robbery of a service station terrorising a family and a service station attendant. He fired shots from a gun. That attracted seven years imprisonment.

The 11 year term was imposed for entering the dwelling house and committing an armed robbery in company. That occurred a month after the robbery at the service station.

The applicant forced his way into the house of a 70-year-old widow. Also present were her daughter and a nine-year-old grand-daughter. He had an accomplice who entered later.

As asserted at the sentencing, the applicant entered by pressing a knife to the throat 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 Palmer

Details

AGLC: R v Palmer [2000] QCA 15
Case: [2000] QCA 15
Decision Date: 07/02/2000

CaseChat Overview and Summary

In the case of R v Palmer, the applicant, Andrew John Palmer, appealed against the sentences imposed on him by the trial judge. Palmer pleaded guilty to various offences, including unlawfully wounding, armed robbery, and entering a dwelling with intent to commit an indictable offence with actual violence. The trial judge sentenced Palmer to a total of 11 years imprisonment, with a declaration that he was convicted of a serious violent offence. The appeal focused on whether the trial judge erred in his understanding of the law concerning the declaration requirement under the Penalties and Sentences Act and whether the sentence was manifestly excessive.

The Court of Appeal addressed the issue of whether the trial judge misapplied the law by believing that a declaration under Part 9A was automatically required if the sentence exceeded 10 years. The Court found that the trial judge was led to believe, incorrectly, that such a declaration was mandatory for sentences over 10 years. However, the Court concluded that this misapprehension did not invalidate the sentence, as the sentence imposed was justified considering the severity of the crimes and the principle of totality.

The Court further considered whether the 11-year sentence was manifestly excessive. Given the nature and gravity of the offences, including the profound and prolonged impact on the victims, the Court found that the sentence was not manifestly excessive. The Court took into account the plea of guilty, Palmer's personality disorder, and the need for psychiatric care. The Court upheld the sentence, noting that the apparent irregularity in the trial did not invalidate the result.

Ultimately, the Court of Appeal dismissed the application, upholding the sentence and declaration imposed by the trial judge.

Orders