R v. Phillips - [2008] QCA 5

COURT OF APPEAL

McMURDO P
HOLMES JA
FRYBERG J

CA No 269 of 2007

THE QUEEN Appellant

WAYNE JOHN PHILLIPS Respondent

BRISBANE

..DATE 04/02/2008

ORDER

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES JA: On the 20th of September 2007, the applicant pleaded guilty on an ex officio indictment to 19 counts of burglary and stealing, three counts of burglary by breaking, one of burglary simpliciter and five counts of stealing. At the same time he was sentenced for 3 summary charges: possession of a dangerous drug (cannabis); a breach of the Bail Act (failing to appear); and an unregulated high risk activity (climbing up the outside of a building). On the burglary counts he was sentenced to 6 years' imprisonment concurrent with a 3 year sentence of imprisonment imposed on the stealing counts. He was convicted but not punished in respect of the summary charges. 199 days spent in pre-sentence custody were declared as time already served, and a parole eligibility date of 5th of March 2009, two years after he was taken into custody, was set.

The offences breached a 2004 sentence of 3 years' imprisonment

suspended after 12 months in respect of 17 counts of burglary

and stealing. The learned sentencing judge ordered that the

balance of that sentence be served concurrently.

The applicant is 26 years old. He has an extensive criminal

history for offences of dishonesty, relevantly beginning in

1998, when he was sentenced to 12 months' juvenile detention

for breaking and entering offences. His history since that time is interspersed with short periods of imprisonment for stealing and burglary. When the 2004 sentence was imposed, he was also dealt with for a breach of a suspended sentence (12 months suspended after 6 weeks) for 11 counts of stealing and four counts of burglary. After being sentenced in 2004, he was released from custody on the 30th of December 2005, and, although still within the operative period of the suspended sentence, began to re-offend just a month after his release.

Returning to the present indictment, the burglary offences

generally involved entry of unattended homes, usually by

smashing a window, and theft of property such as jewellery,

money, cameras, DVD's and compact discs. The stealing

offences were shop stealing, except for one count which

involved stealing a donation tin from an RSL Club.

The value of the property stolen totalled $72,798. About

$5,000 worth had been recovered. In relation to some 7 of the

offences, the police were in possession of evidence linking the applicant to the offences, in the form of surveillance video, DNA analysis or eyewitness evidence, but the remaining 25 offences were prosecuted as the result of the applicant's own admissions in an interview. While being held in custody he said that he wanted to clear up a number of break and enter

offences and proceeded to take the police to the relevant

premises. Four of the offences occurred while he was on bail

and post-dated that cooperation. In his…

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. Phillips

Details

AGLC: R v Phillips [2008] QCA 5
Case: [2008] QCA 5
Decision Date: 4 February 2008

CaseChat Overview and Summary

In this case, the respondent, Wayne John Phillips, appealed against his sentence for multiple counts of burglary and stealing. The appeal was heard in the Court of Appeal by McMurdo J, Holmes JA, and Fryberg J. The appeal centered on the severity of the sentence imposed, with Phillips arguing that the 6-year imprisonment term with a non-parole period of 4 years was manifestly excessive. The Crown Prosecutor presented comparable cases to support the sentence.

The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive, considering the mitigating factors such as Phillips' cooperation with the police and his early guilty plea. The appeal court had to assess whether the sentence adequately balanced the severity of the crimes and the mitigating factors.

The Court of Appeal found that, while the sentence might have been considered severe if the offenses stood alone, the need to activate the remaining 2 years of a suspended sentence made the overall sentence reasonable. The court noted Phillips' cooperation with the police and his early guilty plea as significant mitigating factors. The court concluded that the sentence, when considered as a global one, was not manifestly excessive and denied the appeal against sentence.

The President of the Court of Appeal, McMurdo J, and Fryberg J all agreed with the decision to refuse the application for leave to appeal against the sentence. The final order was that the application for leave to appeal against the sentence was refused.

Orders