R v Ross - [2000] QCA 49

[R v Ross]
[2000] QCA 49
COURT OF APPEAL

DAVIES JA
THOMAS JA
WILSON J

CA No 406 of 1999

THE QUEEN

KENNETH ALLAN ROSS Applicant

BRISBANE

..DATE 29/02/2000

JUDGMENT

WILSON J: This is an application for leave to appeal against a sentence imposed by a District Court Judge on
2 December 1999.

The Crown presented an ex officio indictment charging the applicant with a large number of property offences - one count of aggravated burglary, 13 counts of entering premises and stealing, 1 count of the attempted entry of premises with intent, 1 count of stealing, 1 count of breaking and entering premises and stealing, 2 counts of entering premises with intent, and 3 counts of the unlawful use of motor vehicles.

He was also charged with summary offences, namely, 5 counts of the possession of tainted property, 1 count of the possession of a knife in a public place and 2 counts of the possession of a dangerous drug, being small quantities of marijuana.

He pleaded guilty to all of the charges.

The applicant was born on 7 June 1981. The offences were committed in a seven week period in June, July 1999; that is, in the period immediately before and after his 18th birthday.

Most of the indictable offences concerned unlawful entry into motor vehicles and the theft, or intended theft, of contents. The most serious offences, counts 18 and 19 on the indictment, were committed on 21 July 1999.

The applicant walked into an open shed in the back yard of the complainant's residence where he found a jemmy bar. He took the jemmy from the shed and walked to the house where he used the jemmy to prise open a window. He entered the house and ransacked several rooms. After about 15 minutes he was disturbed by the arrival home of the complainant. He escaped running through the house and causing damage as he went. When subsequently apprehended by the police he was carrying a knife which he had taken from the house in order to threaten anyone who tried to apprehend him.

These offences were committed while he was on bail for offences committed on 21 June 1999, that is counts 6, 7 and 9 on the indictment.

After his arrest on 21 July 1999 he co-operated fully with the authorities and fully admitted all the other offences, in relation to some of which the police had no other evidence. The prosecutor told the sentencing Judge that the total amount of compensation was approximately $8,400.

He was again granted bail by a Magistrate with a surety of $5,000. He was unable to raise the surety and spent 93 days in pre-sentence custody before being granted bail by a Supreme Court Judge.

In relation to the indictable offences, the sentencing Judge imposed a period of imprisonment of six months to be followed by three years' probation. He declared the time already spent in custody to be deemed time already served under the sentence. 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 Ross

Details

AGLC: R v Ross [2000] QCA 49
Case: [2000] QCA 49
Decision Date: 29/02/2000

CaseChat Overview and Summary

The Court of Appeal considered an application for leave to appeal against a sentence imposed by a District Court Judge on an individual named Kenneth Allan Ross, who was convicted of multiple property offences. The applicant had been charged with both indictable and summary offences, including aggravated burglary, theft, unlawful entry, and drug possession. He pleaded guilty to all charges. The majority of the indictable offences involved unlawful entry into motor vehicles and theft of contents, with particularly serious incidents occurring shortly before and after his 18th birthday. The sentencing Judge imposed a six-month imprisonment period followed by three years of probation for the indictable offences and a concurrent one-month imprisonment for the summary offences. The applicant's counsel argued that the sentence was manifestly excessive and that a three-year probation period would have been more appropriate.

The central legal issue before the Court was whether the sentence imposed by the District Court Judge was manifestly excessive. The Court had to assess the sentencing principles applied by the District Court Judge, considering the nature of the offences, the age and background of the offender, and the principles of deterrence and rehabilitation. The Court noted that while courts often prefer community-based sentences for youthful offenders to minimize the risk of exposure to hardened criminals and to maximize rehabilitation, a short term of imprisonment could sometimes be necessary to deter the offender and others. The Court also considered the time the applicant had already spent in pre-sentence custody and the impact on the overall sentence.

In its judgment, the Court concluded that the sentence imposed on the indictable offences was indeed excessive. It granted leave to appeal, set aside the original sentence, and imposed a new sentence of three months' imprisonment for each indictable offence, with a declaration that the time already spent in custody would be deemed time already served. The Court also ordered that upon release, the applicant would be on probation for three years under the supervision of a Corrective Services Commission officer. The sentences for the summary offences remained unchanged, with a similar declaration regarding time already served.

Orders