R v Perry - [2002] QCA 345

[2002] QCA 345

COURT OF APPEAL

McMURDO P
WILLIAMS JA
ATKINSON J

CA No 273 of 2001
CA No 121 of 2002

THE QUEEN

DAVID JOHN PERRY

BRISBANE

..DATE 04/09/2002

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty in the District Court at Brisbane on the 30th August 2002 to an assortment of charges on two indictments. The pleas of guilty on the first indictment were to one count of stealing, two counts of fraud with circumstances of aggravation, three counts of fraud, one count of attempted fraud, two counts of forgery and one count of breaking and entering premises and committing an indictable offence.

The applicant pleaded guilty on the second indictment to six counts of burglary, three counts of stealing, two counts of fraud with a circumstance of aggravation and two further counts of fraud without any aggravating circumstance. He pleaded not guilty to one count of armed robbery in company and two further counts of fraud with a circumstance of aggravation.

His robbery trial was adjourned until 3 September 2001 for hearing and his sentence in respect of the matters to which he had pleaded guilty on the first and second indictments were also adjourned.

On 3 September 2001 the applicant pleaded guilty to the armed robbery in company charge and that sentence was adjourned until 6 September 2001. On that date the applicant pleaded guilty to a further count on the second indictment of fraud with a circumstance of aggravation.

The applicant was then sentenced on all counts to which he had pleaded guilty. The sentence imposed was intended to be five and a half years' imprisonment for the armed robbery in company, the counts of burglary, break and enter and fraud with a circumstance of aggravation and two years imprisonment on the remaining counts.

The Judge made a minor administrative error because of an error on the front sheet of one indictment and mistakenly imposed a sentence of five and a half years' imprisonment on a count of attempted fraud instead of the count of break and enter. The penalty for the offence of attempted fraud is less than the sentence imposed. Regardless of the outcome of this application otherwise, that administrative error must be corrected.

On 31 March 2002, the applicant again appeared before the District Court and pleaded guilty to one count of attempted fraud and one count of fraud on a third indictment and to the charge of fraud with a circumstance of aggravation still outstanding against him on the second indictment.

He was sentenced to two years' imprisonment for fraud with a circumstance of aggravation and to six months' imprisonment on the remaining counts with a recommendation for post prison community based release on 12 August 2003. These sentences did not increase in any way the effective sentence imposed on 6 September 2001.

This application was listed for hearing before this Court on a prior occasion. The applicant had been represented by a barrister from Legal Aid Queensland. The applicant sent…

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 Perry

Details

AGLC: R v Perry [2002] QCA 345
Case: [2002] QCA 345
Decision Date: 04/09/2002

CaseChat Overview and Summary

The case of R v Perry involved the applicant, David John Perry, who had pleaded guilty to a series of charges on two indictments before the District Court at Brisbane. The first indictment involved offences such as stealing, fraud, forgery, and breaking and entering. The second indictment included charges of burglary, further instances of stealing, and fraud. Perry also pleaded guilty to charges on a third indictment. He was sentenced to five and a half years' imprisonment for certain offences and two years for the remaining charges. The Court of Appeal was tasked with reviewing the sentence imposed and addressing an administrative error in the sentencing.

The primary legal issue before the Court of Appeal was whether the sentence imposed on Perry was manifestly excessive, considering his pleas of guilty and attempts at reform. The Court had to determine if the District Court judge appropriately weighed these mitigating factors against the severity of the crimes committed. Additionally, the Court needed to correct an administrative error in the sentencing.

The Court of Appeal found that the sentence of five and a half years' imprisonment with a recommendation for post-prison community-based release was not manifestly excessive. The Court acknowledged the seriousness of Perry's criminal history and the nature of his offences, which included significant dishonesty and multiple burglaries. Despite some mitigating factors such as Perry's cooperation and pleas of guilty, the Court concluded that the sentence adequately reflected the circumstances of the case. However, the Court identified an administrative error where the sentence for one count was incorrectly imposed, and this required correction. The Court thus allowed the appeal to the limited extent of correcting this administrative error, substituting a sentence of two years' imprisonment on the count in question.

In summary, the Court of Appeal confirmed the sentences imposed at first instance but granted the appeal to correct the administrative error in the sentencing. The sentences on the remaining counts were upheld as not manifestly excessive, considering all relevant factors.

Orders