R v Prosser - [1995] QCA 302

IN THE COURT OF APPEAL	[1995] QCA 302
SUPREME COURT OF QUEENSLAND

C.A. No. 159 of 1995.

Brisbane

[R v. Prosser]

T H E Q U E E N

DAMIEN RENEA PROSSER

(Applicant)

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Pincus J.A.
Demack J.
Shepherdson J.

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Judgment delivered 11/07/1995

Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
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CATCHWORDS: CRIMINAL LAW - sentence - offences committed during operation of suspended sentence - late pleas of guilty - totality - overall criminality.

S. 147 Penalties & Sentences Act 1992
Mill (1988) 166 C.L.R. 59
Griffiths (1989) 167 C.L.R. 37

McInerney (1986) 42 S.A.S.R. 111

Counsel:	Mr D Lynch for the applicant
Mr B Campbell for the respondent
Solicitors:	Legal Aid Office for the applicant
Director of Prosecutions for the respondent

Hearing date: 7 June 1995.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 11/07/1995

I have read the reasons for judgment of Shepherdson J in which there is to be found a detailed account of the criminal history of this applicant. It is desirable to consider the offences which seem principally to have influenced the sentences sought to be challenged, imposed in the District Court on 24 March 1995, in three categories. First, there is the group of offences which were dealt with in the District Court on 4 August 1994. Second, there is the group as to which the District Court imposed sentences on 31 March 1995. The third group is a collection of offences dealt with in the Magistrates Court on 15, 16 and 17 March 1995.

The first group, those dealt with in the District Court on 4 August 1994, consisted in a total of four stealing offences and two offences of wilful and unlawful damage to property; they were committed between June 1992 and October 1993. The learned District Court judge imposed a 12 month suspended sentence and made orders for compensation on the basis that there were features which "perhaps naively inspire some cause for optimism in your case", to use his Honour's expression. With respect to the second batch, dealt with on 31 March 1995, they consisted of four offences committed in April 1994 - before the sentencing just discussed - and another one committed in October 1994. It is convenient to defer discussion of the details of those five offences; all that requires emphasis at this stage is that only one of them, and that not a very heinous offence, was committed after the suspended sentence of 4 August 1994 was imposed. Had there been no other recent offences for which sentences were to be imposed, it would have been surprising if a heavy sentence were imposed for the April 1994 offences on the basis that the applicant had not taken advantage of the opportunity given him by the August 1994 suspended sentence; that would have been surprising because only one offence committed after August 1994 was included in the batch dealt with in…

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 Prosser

Details

AGLC: R v Prosser [1995] QCA 302
Case: [1995] QCA 302
Decision Date: 11/07/1995

CaseChat Overview and Summary

The applicant, Damien Renea Prosser, sought leave to appeal against sentences imposed by the District Court following his guilty pleas to various charges, including housebreaking, stealing, receiving, and unlawful use of a motor vehicle. The Court of Appeal was asked to determine whether the sentences were manifestly excessive and whether the sentencing judge had given insufficient consideration to the applicant's age and the late pleas of guilty. The Court of Appeal comprised Pincus JA, Demack J, and Shepherdson J, each delivering separate reasons for judgment. The central issue was whether the sentencing judge erred in considering the applicant's overall criminality, including offences committed after a previously imposed suspended sentence. Pincus JA and Demack J dissented, arguing that the sentences were excessive and did not sufficiently account for the late pleas of guilty and the applicant's youth, while Shepherdson J upheld the sentences, finding no error in the judge's application of the totality principle. The majority decision was to dismiss the application, affirming the sentences as appropriate given the applicant's extensive criminal history and the seriousness of the offences.

Orders