R v Ross - [2004] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ross [2004] QCA 21

PARTIES:

R
v
ROSS, Lew
(applicant)

FILE NO/S:

CA No 343 of 2003
DC No 1459 of 2003
DC No 2410 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

11 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2004

JUDGES:

de Jersey CJ, Davies JA and Mackenzie 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where recommendation for post prison community based release rather than suspension – whether desirability of post prison supervision and assistance is relevant – where applicant has history of offences of dishonesty – where number of offences large and property not recovered has high value – whether sentence is manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
R G Martin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE J: This is an application for leave to appeal against an effective sentence of six years with a recommendation for post prison community based release after two years for a large number of offences of dishonesty. One indictment which, for convenience, I will call the first indictment, contains 67 counts and an ex officio indictment contains a further three.

Two of the counts in the first indictment concerned related offences in 1995 of entering a dwelling house with intent and stealing. In April 1995, after the date of those offences, the applicant was sentenced for 36 other offences of dishonesty with a further five being taken into account. He was sentenced to three and a half years imprisonment, which it was said in the record, inflated to about five years after he later received cumulative sentences for breaches of bail, escaping from custody and dangerous driving.

Three of the offences in the first indictment are related offences committed in 2000, comprising entering a dwelling and stealing goods worth about $9,500, attempting to unlawfully use a Holden HSV at the premises and eventually unlawfully using another vehicle from the same premises to take the goods away.

In June of 2000 the applicant appeared in the District Court in respect of four other offences of entering dwelling houses and received a fully suspended sentence on the basis that he said he was to be receiving treatment for his drug addiction.

The first indictment also contains five offences committed in early 2001, comprising three burglaries, in one of which the home owner's motor vehicle was unlawfully used to take $16,000 worth of goods away. There was also an unrelated unlawful use of a motor vehicle.

In April 2001 the applicant…

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 [2004] QCA 21
Case: [2004] QCA 21
Decision Date: 11 February 2004

CaseChat Overview and Summary

The case before the court was an appeal by Ross, the convicted person, against his sentence. The primary legal issue was whether the sentence imposed by the trial court was manifestly excessive. Ross argued that the desirability of post-prison supervision and assistance should be considered when determining the appropriateness of a post-prison community-based release rather than a suspended sentence. The appellant had a history of offences of dishonesty, and the number of offences was significant, with property of a high value not recovered. The court had to determine if the sentence was manifestly excessive, taking into account these factors.

The court examined the seriousness of the offence, the appellant's criminal history, and the appropriateness of the sentence. The trial judge had considered the appellant's history of dishonesty offences, the number of offences, and the high value of the unrecovered property when imposing the sentence. The court found that the trial judge had appropriately weighed these factors and that the sentence was not manifestly excessive. The court emphasised that the desirability of post-prison supervision and assistance was not a relevant consideration when deciding on the type of sentence to impose. Consequently, the appeal against the sentence was dismissed, and the application to reduce the sentence was refused.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ross [2004] QCA 21
PARTIES:	R v ROSS, Lew (applicant)
FILE NO/S:	CA No 343 of 2003 DC No 1459 of 2003 DC No 2410 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	11 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2004
JUDGES:	de Jersey CJ, Davies JA and Mackenzie 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – where recommendation for post prison community based release rather than suspension – whether desirability of post prison supervision and assistance is relevant – where applicant has history of offences of dishonesty – where number of offences large and property not recovered has high value – whether sentence is manifestly excessive
COUNSEL:	The applicant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent