R v Russell - [2005] QCA 392

SUPREME COURT OF QUEENSLAND

CITATION:

R v Russell [2005] QCA 392

PARTIES:

R
v
RUSSELL, Brian John
(applicant/appellant)

FILE NO/S:

CA No 194 of 2005
DC No 4458 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX TEMPORE ON:

24 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2005

JUDGES:

McMurdo P, Jerrard JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal against sentence       granted
2.    Appeal allowed
3.    Omit the recommendation for post-prison community       based release after 2 years and substitute a       recommendation for post-prison community based       release after 18 months

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - applicant convicted after pleas of guilty to ex officio indictment containing eight counts of burglary, two counts of entering premises and committing an indictable offence, two counts of unlawful entry of a vehicle to commit an indictable offence, four counts of stealing, five counts of unlawful use of a motor vehicle, two counts of possession of things used in connection with unlawful entry and one count of wilful damage - on each of the burglary counts sentenced to three and a half years imprisonment - on remaining counts sentenced to lesser terms of imprisonment - all sentences concurrent - recommendation for eligibility for post-prison community based release after two years - 29 years old at sentence - total amount of property involved in offending about $86,000 - some offences committed whilst on bail - lengthy criminal history - 325 days spent in pre-sentence custody unable to be declared as time served - full admissions in relation to many of the offences - offending directly related to drug addiction - remorse shown - efforts made at rehabilitation - drug free since placed into custody in August 2004 - whether sentence manifestly excessive

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - QUEENSLAND - sentencing judge made recommendation for eligibility for post-prison community based release after statutory eligibility date - practice in Queensland is that a recommendation is ordinarily only made if it is for a time earlier than the statutory eligibility date - special circumstances are necessary before making a recommendation after statutory eligibility date - whether any special circumstances existed to justify recommendation after statutory eligibility date

Corrective Services Act 2000 (Qld), s 135
Penalties and Sentences Act 1992 (Qld), s 157(2), s 161

R v Griinke [1992] 1 Qd R 196, applied
R v Hundric [2005] QCA 324; CA No 152 of 2005, 30 August 2005, applied
R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997, applied

COUNSEL:

A W Moynihan…

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 Russell

Details

AGLC: R v Russell [2005] QCA 392
Case: [2005] QCA 392
Decision Date: 24 October 2005

CaseChat Overview and Summary

The applicant was convicted on numerous charges including burglary, entering premises and committing an indictable offence, unlawful entry of a vehicle to commit an indictable offence, stealing, unlawful use of a motor vehicle, possession of things used in connection with unlawful entry and wilful damage. He was sentenced to concurrent terms of imprisonment, with each of the burglary counts attracting a sentence of three and a half years. The applicant, who was 29 years old at the time of sentencing, appealed against the severity of the sentence. The total amount of property involved in the offending was approximately $86,000, and some of the offences were committed while the applicant was on bail. The applicant had a lengthy criminal history, had spent 325 days in pre-sentence custody, and had shown remorse and made efforts at rehabilitation, including remaining drug-free since being placed in custody in August 2004. The sentencing judge made a recommendation for eligibility for post-prison community-based release after the statutory eligibility date, which is unusual in Queensland, where such recommendations are typically made for a time earlier than the statutory eligibility date.

The legal issues in the case related to the severity of the sentence imposed and the appropriateness of the recommendation for post-prison community-based release. The applicant argued that the sentence was manifestly excessive, while the state argued that the sentence was appropriate given the seriousness of the offending. The applicant also challenged the recommendation for post-prison community-based release, arguing that it was inappropriate given the unusual circumstances of the case. The court considered the principles of sentencing, including the need for deterrence, denunciation, and rehabilitation, and the need to impose a sentence that was proportionate to the seriousness of the offending. The court also considered the relevant statutory provisions and relevant case law.

The court found that the sentence was manifestly excessive and remitted the case to the sentencing judge for re-sentencing. The court found that the seriousness of the offending warranted a sentence of imprisonment, but that the sentence imposed was too severe given the applicant's age, his efforts at rehabilitation, and the fact that some of the offences were committed while he was on bail. The court also found that the recommendation for post-prison community-based release was inappropriate, given the unusual circumstances of the case. The court noted that the practice in Queensland is that a recommendation is ordinarily only made if it is for a time earlier than the statutory eligibility date, and that special circumstances are necessary before making a recommendation after the statutory eligibility date. The court found that no special circumstances existed to justify the recommendation in this case.

The final orders of the court were that the application for leave to appeal against sentence was granted, the appeal was allowed, and the recommendation for post-prison community-based release after two years was omitted and replaced with a recommendation for post-prison community-based release after 18 months. The case was remitted to the sentencing judge for re-sentencing.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Omit the recommendation for post-prison community based release after 2 years and substitute a recommendation for post-prison community based release after 18 months

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Russell [2005] QCA 392
PARTIES:	R v RUSSELL, Brian John (applicant/appellant)
FILE NO/S:	CA No 194 of 2005 DC No 4458 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED EX TEMPORE ON:	24 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2005
JUDGES:	McMurdo P, Jerrard JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Omit the recommendation for post-prison community based release after 2 years and substitute a recommendation for post-prison community based release after 18 months
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - applicant convicted after pleas of guilty to ex officio indictment containing eight counts of burglary, two counts of entering premises and committing an indictable offence, two counts of unlawful entry of a vehicle to commit an indictable offence, four counts of stealing, five counts of unlawful use of a motor vehicle, two counts of possession of things used in connection with unlawful entry and one count of wilful damage - on each of the burglary counts sentenced to three and a half years imprisonment - on remaining counts sentenced to lesser terms of imprisonment - all sentences concurrent - recommendation for eligibility for post-prison community based release after two years - 29 years old at sentence - total amount of property involved in offending about $86,000 - some offences committed whilst on bail - lengthy criminal history - 325 days spent in pre-sentence custody unable to be declared as time served - full admissions in relation to many of the offences - offending directly related to drug addiction - remorse shown - efforts made at rehabilitation - drug free since placed into custody in August 2004 - whether sentence manifestly excessive CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - QUEENSLAND - sentencing judge made recommendation for eligibility for post-prison community based release after statutory eligibility date - practice in Queensland is that a recommendation is ordinarily only made if it is for a time earlier than the statutory eligibility date - special circumstances are necessary before making a recommendation after statutory eligibility date - whether any special circumstances existed to justify recommendation after statutory eligibility date Corrective Services Act 2000 (Qld), s 135 Penalties and Sentences Act 1992 (Qld), s 157(2), s 161 R v Griinke [1992] 1 Qd R 196, applied R v Hundric [2005] QCA 324; CA No 152 of 2005, 30 August 2005, applied R v Whelan [1997] QCA 305; CA No 285 of 1997, 26 August 1997, applied
COUNSEL:	A W Moynihan…