R v Ross

Case [2012] QCA 247 13 September 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2012] QCA 247

PARTIES:

R
v
ROSS, Anthony John
(applicant)

FILE NO/S:

CA No 148 of 2012
DC No 1888 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2012

JUDGES:

Muir and Fraser JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to burglary, assault occasioning bodily harm, and stealing – where the applicant was sentenced to 18 months imprisonment for the burglary, 15 months for the assault and three months for stealing – where the applicant’s parole release date was fixed after six months at 18 October 2012 – where the variation sought was to change the parole release date to the date the sentence application was heard – whether the sentences were manifestly excessive

R v Bell [1982] Qd R 216, cited
R v Blenkinsop[2007] QCA 181, cited
R v Bower-Miles & Smith[1995] QCA 453, cited
R v Cockfield[2006] QCA 276, cited
R v Denham; ex parte A‑G (Qld)[2003] QCA 74, cited
R v Fatnowna; ex parte A-G[1999] QCA 492, cited
R v Fitzgerald [2004] QCA 241, cited
R v Hogon (1987) 30 A Crim R 399; [1986] NTSC 45, cited
R v Houghton & Genrich [1998] QCA 137, referred
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, referred
R v Sailor; ex parte A‑G(Qld)[2003] QCA 227, cited
R v Salmon; ex parte Attorney-General of Queensland[2002] QCA 262, cited
R v Wentt [1995] QCA 613, referred

COUNSEL:

S A Lynch for the applicant
V A Loury for the respondent

SOLICITORS:

Bell Miller Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application should be refused for the reasons given by Douglas J.

FRASER JA: For the reasons given by Douglas J, the applicant’s sentence was not manifestly excessive and the application should be refused.

DOUGLAS J: The applicant pleaded guilty to what is commonly described as a “home invasion”. The charges were burglary by breaking, in the night, with violence, in company, with property damage; assault occasioning bodily harm, while armed, in company and stealing. He was sentenced to 18 months imprisonment on the burglary count, 15 months for the assault and three months for stealing. His parole release date was fixed after six months at 18 October 2012.

The applicant contends that the sentences were manifestly excessive. The variation sought was to change the parole release date to the date the application was heard, 31 July 2012. In my view, the…

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 Ross

Details

AGLC: R v Ross [2012] QCA 247
Case: [2012] QCA 247
Decision Date: 13 September 2012

CaseChat Overview and Summary

The case before the court was an appeal by the applicant against the sentence imposed for convictions of burglary, assault occasioning bodily harm, and stealing. The applicant, who had pleaded guilty, was sentenced to 18 months imprisonment for the burglary, 15 months for the assault, and three months for stealing, to be served concurrently. The court set a parole eligibility date of six months into the sentence, which was 18 October 2012. The applicant sought to vary the parole release date to the date the sentence application was heard, arguing that the sentences were manifestly excessive.

The primary legal issue before the court was whether the sentences imposed by the sentencing judge were manifestly excessive or inadequate. The court considered whether the sentence imposed was outside the range of sentences that could be regarded as appropriate in the circumstances of the case. The court also had to consider whether there were any grounds for interference with the sentence, such as a significant error in the assessment of the seriousness of the offences or an error in the calculation of the sentence.

The court found that the sentence imposed was not manifestly excessive. It held that the sentencing judge had considered all relevant factors, including the applicant's criminal history and the circumstances of the offences. The court found that the sentence was within the range of sentences that could be regarded as appropriate in the circumstances of the case. The court also found that there were no grounds for interference with the sentence, as there had been no significant error in the assessment of the seriousness of the offences or the calculation of the sentence. The application for a variation of the parole release date was refused.

The court's final order was that the application for a variation of the parole release date was refused. The applicant's appeal against sentence was dismissed, and the original sentence and parole release date stood.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ross [2012] QCA 247

Most Recent Citation

R v Buckley; R v Ghattas [2014] QCA 98

Cases citing this decision · 4 of 4 shown

R v HYQ
[2024] QCA 151 Para 21

…[36]. Of course, all will depend on the circumstances of the particular case, including the nature and prevalence of the offence.[38] [38]Cf R v Ross [2012] QCA 247 at [12] and [13], as to the importance of deterrence in particular kinds of cases (in Ross , a home invasion offence) and R v Deering [2008] QCA 209,…
Osborne v Commissioner of Police
[2020] QDC 249 Para 1

…General [8] and R v Ross. [9] Accordingly it is submitted that I ought to exercise the discretion afresh. [7][2004] QCA 241. [8][2003] QCA 74. [9][2012] QCA 247.…
Savaiinaea and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3510 Para 7

…04] QCA 241; R v Denham ex parte Attorney General [2003] QCA 74; R v Ross [2012] QCA 247; R v Buckley and Ghattas [2014] QCA 98. As the Court of Appeal observed in Fitzgerald at paragraph 14, with reference to R v Wendt, "offences of this character which threaten the safety of persons in their own home are common…
R v Buckley; R v Ghattas
[2014] QCA 98 Para 1

…d that the applicant has used a dangerous weapon, and that a parole release date fixed after six months was not excessive in the circumstances. [16][2012] QCA 247.…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Leu; R v Togia
[2008] QCA 201

…A Crim R 399; [1986] NTSC 45, cited R v Houghton & Genrich [1998] QCA 137, referred R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, referred R v Sailor; ex parte A‑G (Qld) [2003] QCA 227, cited R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262, cited R v Wentt [1995] QCA 613, referred…
R v Blenkinsop
[2007] QCA 181 Para 1

…he respondent to indicate that a parole release date fixed after six months in a case such as this is by no means excessive.[7] [7]See R v Blenkinsop [2007] QCA 181 and R v Cockfield [2006] QCA 276 where the imprisonment was suspended after service of three months but the sentence had been imposed pursuant to s 1…
R v Cockfield
[2006] QCA 276 Para 1

…parole release date fixed after six months in a case such as this is by no means excessive.[7] [7]See R v Blenkinsop [2007] QCA 181 and R v Cockfield [2006] QCA 276 where the imprisonment was suspended after service of three months but the sentence had been imposed pursuant to s 13A of the Penalties and Sentences…
R v Fitzgerald
[2004] QCA 241 Para 1

…us weapon and inflicted an injury on the complainant. He formed the view that that required him to impose a term of actual imprisonment. [1][2004] QCA 241 at [14]-[15].…
R v Sailor; ex parte A-G (Qld)
[2003] QCA 227 Para 1

…ral of Queensland [2002] QCA 262; R v Bower-Miles & Smith [1995] QCA 453; R v Fatnowna; ex parte A-G [1999] QCA 492; R v Sailor; ex parte A‑G (Qld) [2003] QCA 227 and R v Denham; ex parte A‑G (Qld) [2003] QCA 74.…
R v Denham; ex parte A-G (Qld)
[2003] QCA 74 Para 1

…Smith [1995] QCA 453; R v Fatnowna; ex parte A-G [1999] QCA 492; R v Sailor; ex parte A‑G (Qld) [2003] QCA 227 and R v Denham; ex parte A‑G (Qld) [2003] QCA 74.…
R v Salmon; ex parte Attorney-General
[2002] QCA 262 Para 1

….[4] [3][1995] QCA 613 and adopted by Jerrard JA in R v Fitzgerald [2004] QCA 241 at [14]. [4]See R v Salmon; ex parte Attorney General of Queensland [2002] QCA 262; R v Bower-Miles & Smith [1995] QCA 453; R v Fatnowna; ex parte A-G [1999] QCA 492; R v Sailor; ex parte A‑G (Qld) [2003] QCA 227 and R v Denham; ex…
R v Houghton & Genrich
[1998] QCA 137

…492, cited R v Fitzgerald [2004] QCA 241, cited R v Hogon (1987) 30 A Crim R 399; [1986] NTSC 45, cited R v Houghton & Genrich [1998] QCA 137, referred R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, referred R v Sailor; ex parte A‑G (Qld) [2003] QCA 227, cited R v Salmon; ex parte Attorney-General o…
R v Wentt
[1995] QCA 613 Para 1

…ll as some others where an intensive correction order or a parole release date earlier than was imposed by his Honour in this case was ordered.[4] [3][1995] QCA 613 and adopted by Jerrard JA in R v Fitzgerald [2004] QCA 241 at [14]. [4]See R v Salmon; ex parte Attorney General of Queensland [2002] QCA 262; R v Bo…
R v Bower-Miles & Smith
[1995] QCA 453 Para 1

…rrard JA in R v Fitzgerald [2004] QCA 241 at [14]. [4]See R v Salmon; ex parte Attorney General of Queensland [2002] QCA 262; R v Bower-Miles & Smith [1995] QCA 453; R v Fatnowna; ex parte A-G [1999] QCA 492; R v Sailor; ex parte A‑G (Qld) [2003] QCA 227 and R v Denham; ex parte A‑G (Qld) [2003] QCA 74.…
[1986] NTSC 45
[1986] NTSC 45

…, cited R v Fatnowna; ex parte A-G [1999] QCA 492, cited R v Fitzgerald [2004] QCA 241, cited R v Hogon (1987) 30 A Crim R 399; [1986] NTSC 45, cited R v Houghton & Genrich [1998] QCA 137, referred R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, referred R v Sailor; ex parte A‑G (Qld) [2003] QCA 227,…
R v Fatnowna; ex parte A-G
[1999] QCA 492 Para 1

…t [14]. [4]See R v Salmon; ex parte Attorney General of Queensland [2002] QCA 262; R v Bower-Miles & Smith [1995] QCA 453; R v Fatnowna; ex parte A-G [1999] QCA 492; R v Sailor; ex parte A‑G (Qld) [2003] QCA 227 and R v Denham; ex parte A‑G (Qld) [2003] QCA 74.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v Ross [2012] QCA 247
PARTIES:	R v ROSS, Anthony John (applicant)
FILE NO/S:	CA No 148 of 2012 DC No 1888 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2012
JUDGES:	Muir and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to burglary, assault occasioning bodily harm, and stealing – where the applicant was sentenced to 18 months imprisonment for the burglary, 15 months for the assault and three months for stealing – where the applicant’s parole release date was fixed after six months at 18 October 2012 – where the variation sought was to change the parole release date to the date the sentence application was heard – whether the sentences were manifestly excessive R v Bell [1982] Qd R 216, cited R v Blenkinsop[2007] QCA 181, cited R v Bower-Miles & Smith[1995] QCA 453, cited R v Cockfield[2006] QCA 276, cited R v Denham; ex parte A‑G (Qld)[2003] QCA 74, cited R v Fatnowna; ex parte A-G[1999] QCA 492, cited R v Fitzgerald [2004] QCA 241, cited R v Hogon (1987) 30 A Crim R 399; [1986] NTSC 45, cited R v Houghton & Genrich [1998] QCA 137, referred R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, referred R v Sailor; ex parte A‑G(Qld)[2003] QCA 227, cited R v Salmon; ex parte Attorney-General of Queensland[2002] QCA 262, cited R v Wentt [1995] QCA 613, referred
COUNSEL:	S A Lynch for the applicant V A Loury for the respondent
SOLICITORS:	Bell Miller Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent