R v Payne - [2002] QCA 75

[2002] QCA 75

COURT OF APPEAL

McMURDO P
WILLIAMS JA
MUIR J

CA No 337 of 2001

THE QUEEN

GRAHAM TRAVIS PAYNE

BRISBANE

..DATE 14/03/2002

JUDGMENT

MUIR J: The applicant seeks leave to appeal against a sentence of three years' imprisonment suspended after nine months with an operational period of five years imposed by a Judge of the District Court in Ipswich on 21 November 2001 for the following five offences to which the applicant pleaded guilty: Count 1 breaking, entering and stealing; Count 2 assisting one Gabriel Lacey who, to his knowledge, was guilty of the crime of unlawfully setting fire to two motor vehicles to enable her to escape punishment; Count 3 robbery whilst armed with a knife and syringe and in company; Count 4 entering premises with intent to commit an indictable offence.

The remaining offence, on a separate indictment, was robbery whilst armed and in company.

The proposed ground of appeal is that the sentence was manifestly excessive. The applicant, a single unemployed male with no previous criminal convictions, was 23 years of age at the time of the offences.

The circumstances relating to Counts 1 and 2 are as follows. On 27 June 2001, the applicant and a friend, Lacey, drove in the applicant's car to a shed in a suburb of Ipswich owned by a friend of the applicant. A wire fence surrounding the premises was pushed open by Lacey using the applicant's car and the padlock door of the shed was forced.

The applicant and Lacey took some tools from the shed. Lacey, annoyed at failing in an attempt to remove the wheels from one of the two vehicles in the shed, threw some paint onto the roof of one of the vehicles. The applicant indicated that it was time to leave whereupon Lacey said that she was going to "light up the vehicles" and proceeded to make good her threat.

They then left the premises and drove off in the applicant's car. The applicant handed most of the tools over to police when he voluntarily attended at a police station on 24 September 2001 and made a statement.

As for Count 3, the applicant and Lacey entered a service station convenience store at about 10.40 p.m. on 3 July 2001. They were both wearing woollen headwear and were further disguised by material wrapped around their heads. The applicant had purchased the headwear at Lacey's request earlier that day. He carried a knife whilst Lacey carried a syringe which had been filled, by Lacey, with the applicant's blood. The two with their respective weapons displayed, demanded that the console operator open the safe. He declined and the applicant and Lacey took the drawer of the till and some cigarettes and left. I should mention that Lacey retained all of the $465 taken from the service station.

Count 4 is relatively minor. On 24 September 2001, the applicant and Lacey broke into a garage looking for a piece of equipment for Lacey. They…

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 Payne

Details

AGLC: R v Payne [2002] QCA 75
Case: [2002] QCA 75
Decision Date: 14/03/2002

CaseChat Overview and Summary

In the matter of R v Payne, the applicant, Graham Travis Payne, sought leave to appeal against a sentence of three years' imprisonment, suspended after nine months with an operational period of five years, imposed by a Judge of the District Court in Ipswich for multiple offences. Payne pleaded guilty to breaking and entering, assisting in the setting fire to two motor vehicles, robbery while armed and in company, and entering premises with intent to commit an indictable offence. The applicant argued that the sentence was manifestly excessive, particularly considering his cooperation with authorities, lack of criminal history, age, previous good character, remorse, limited intellect, and susceptibility to influence and exploitation.

The legal issues in this appeal centred around whether the sentencing judge appropriately considered the mitigating circumstances presented by Payne's counsel, specifically his cooperation with authorities, lack of prior convictions, age, good character, remorse, intellectual disability, and vulnerability to exploitation. The Court of Appeal had to determine if the sentence imposed was excessive in light of these factors and whether the sentencing judge had misapprehended the extent of Payne's intellectual disability.

The Court of Appeal found that all the mitigating factors raised by Payne's counsel were significant and relevant to the exercise of the sentencing discretion. The court was of the opinion that insufficient regard was had to these factors, particularly in light of Payne's intellectual disability and his vulnerability to exploitation by his accomplice, Lacey. The Court allowed Payne's application for leave to appeal, set aside the original sentence, and substituted a sentence of two years' imprisonment suspended after six months with an operational period of three years. The President and Williams JA concurred with the decision, and the order was as outlined by Muir J.

Orders