R v Pearson-Harding - [1999] QCA 92

IN THE COURT OF APPEAL [1999] QCA 092
SUPREME COURT OF QUEENSLAND
C.A. No. 377 of 1998
Brisbane
[R v. Pearson-Harding]
THE QUEEN
v.
JODY PEARSON-HARDING

(Applicant) Appellant

McMurdo P.
McPherson J.A.
Pincus J.A.

Judgment delivered 26 March 1999
Joint reasons for judgment of McMurdo P. and Pincus J.A., separate reasons of
McPherson J.A. concurring as to the orders made
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED TO THE EXTENT OF SUBSTITUTING FOR EACH OF THE 6 YEAR
SENTENCES IMPOSED BELOW A SENTENCE OF 5 YEARS IMPRISONMENT,
CUMULATIVE UPON THE SENTENCES IMPOSED ON 21 JUNE 1996.
DECLARE THAT THE PERIOD OF IMPRISONMENT SERVED BY APPLICANT FROM
16 MARCH 1998 TO 9 OCTOBER 1998 BE TREATED, IN WHOLE, AS IMPRISONMENT
SERVED UNDER SENTENCES IMPOSED ON 21 JUNE 1996. IN LIEU OF THE ORDER
WITH RESPECT TO PAROLE MADE BELOW, IT IS RECOMMENDED THAT THE
APPLICANT BE ELIGIBLE FOR RELEASE ON PAROLE ON 9 APRIL 2001. THE 3-
YEAR SENTENCES IMPOSED BELOW ARE CONFIRMED.

CATCHWORDS:

CRIMINAL LAW - sentence - s. 156A Penalties and Sentences Act 1992 misapplied - Court of Appeal to exercise its own discretion - totality principle - sentences imposed by judge excessive.
Counsel: Ms B Callaghan for the applicant/appellant.
Mrs L J Clare for the respondent.
Solicitors: Boe and Callaghan for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the
respondent.

Hearing Date: 5 March 1999.
JOINT REASONS FOR JUDGMENT - McMURDO P. AND PINCUS J.A.
Judgment delivered 26 March 1999

This is an application for leave to appeal against sentence. The applicant, a woman born on 1 February 1978 who was when sentenced on 9 October 1998 liable to serve the balance of existing sentences, complains of 6 year sentences imposed on her then. The essence of the applicant's argument is that if one adds to the 6 year sentences a period of nearly 2 years which the applicant still had to serve under existing sentences, the total of nearly 8 years is too great having regard to the applicant's youth, pleas of guilty and the extent of her co-operation with the police. The applicant's offences were of dishonesty of various kinds, but principally theft and misuse of credit cards. The judge ordered that the applicant be considered for release on parole on 9 April 2002.
The applicant is a young woman who has to an unusual extent been persistently dishonest, apparently uninfluenced by being, when committing offences, on probation, on parole or on bail - or, as she was at times when committing the offences in question, in all three conditions at once. The batch of offences with which we are concerned in this application was dealt with in the District Court on 9 October 1998 when the applicant pleaded guilty to 22 offences and asked that 141 further offences be taken into account, under s. 189(2)(c) of the Penalties and Sentences Act 1992. As was pointed out by the prosecutor below, it would have been possible for a considerably larger number 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 Pearson-Harding

Details

AGLC: R v Pearson-Harding [1999] QCA 92
Case: [1999] QCA 92
Decision Date: 26/03/1999

CaseChat Overview and Summary

In the matter of R v Pearson-Harding, the Court of Appeal of a state in Australia reviewed the sentences imposed on the appellant, who had been convicted on multiple charges. The appellant contested the severity of the sentences, arguing that the trial judge had misapplied s. 156A of the Penalties and Sentences Act 1992. The central issue for the Court of Appeal was whether the sentences imposed were excessive and if the trial judge's application of the law was correct. The appeal further considered whether the totality principle, which seeks to ensure that the overall sentence does not exceed what is proportionate to the aggregate of the individual offences, was appropriately applied.

The Court of Appeal found that the trial judge had indeed misapplied s. 156A of the Penalties and Sentences Act 1992, leading to sentences that were excessively harsh. The court exercised its discretion to substitute the original sentences with a reduced term of 5 years imprisonment for each of the contested charges, to be served cumulatively with the sentences from a previous date. The court also addressed the parole eligibility date, recommending that the appellant be eligible for release on parole sooner than initially determined. The 3-year sentences on other charges were upheld as appropriate.

The Court of Appeal granted the appeal, reducing the sentences as outlined above and adjusting the parole eligibility. This decision reflects the court's role in ensuring that sentences are proportionate and legally sound, taking into account the totality principle and the correct application of statutory provisions.

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

We grant the application and allow the appeal to the extent of substituting for each of the 6 year sentences imposed below a sentence of 5 years imprisonment, cumulative upon the sentences imposed on 21 June 1996. It should be declared that the period of imprisonment served by the applicant from 16 March 1998 to 9 October 1998 is to be treated, in whole, as imprisonment served under the sentences imposed on 21 June 1996. Further, in lieu of the order with respect to parole made below, it should be recommended that the applicant be eligible for release on parole on 9 April 2001. The 3-year sentences imposed below are confirmed. REASONS FOR JUDGMENT - McPHERSON JA Judgment delivered 26 March 1999 I agree with the joint reasons of McMurdo P and Pincus JA and with the orders they propose.

Ratio Decidendi

Legal Principle Established

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IN THE COURT OF APPEAL	[1999] QCA 092
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - sentence - s. 156A Penalties and Sentences Act 1992 misapplied - Court of Appeal to exercise its own discretion - totality principle - sentences imposed by judge excessive.
Counsel:	Ms B Callaghan for the applicant/appellant. Mrs L J Clare for the respondent.
Solicitors:	Boe and Callaghan for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	5 March 1999.