R v Sailor; ex parte A-G (Qld) - [2003] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sailor; ex parte A-G (Qld) [2003] QCA 227

PARTIES:

R
v
SAILOR, Murray Wya
(respondent)
ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 55 of 2003
DC No 472 of 2002

DIVISION:

Court of Appeal - Cairns Circuit

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

26 May 2003

DELIVERED AT:

Cairns

HEARING DATE:

26 May 2003

JUDGES:

McMurdo P, Davies JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where respondent pleaded guilty to burglary, assault occasioning bodily harm and wilful damage - where respondent sentenced to imprisonment for three months, 12 months and 12 months respectively to be served by way of intensive corrective order - where respondent showed remorse - where respondent served four months of intensive correction order satisfactorily by time of appeal - whether sentence manifestly inadequate

R v Bazley and Attorney-General of Queensland [1997] QCA 238; CA No 220 of 1997, 5 August 1997, applied

R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, distinguished

R v Frazer [1997] QCA 306; CA No 252 of 1997, 5 August 1997, distinguished

R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262; CA No 155 of 2002, 5 February 2003, considered

R v Williamson [1996] QCA 548; CA No 392 of 1996, 1 November 1996, distinguished

COUNSEL:

L J Clare for appellant
B G Devereaux for respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for appellant
Legal Aid Queensland for respondent

JONES J: This is an appeal by the Attorney-General against the leniency of a sentence imposed on the respondent who pleaded guilty to three offences on the 6th of February 2003.

For the offence of burglary with circumstances of aggravation the respondent was sentenced to three months' imprisonment; for the offence of assault occasioning bodily harm whilst armed and in company, 12 months' imprisonment; and for wilful damage, 12 months' imprisonment.

The sentences were to be served by way of an intensive correction order in the community and not in prison. He was ordered to pay $619 restitution for the damage he caused.

The circumstances were that in the middle of the night of the 9th of December 2001 the respondent, in company with two friends, broke and entered a residence in suburban Cairns. Sometime prior to this evening the residents had been in the home of one Christopher Sailor and one Jimmy Baker. Christopher Sailor is alleged to have killed Baker and was remanded in custody on a charge of murder.

The complainant in this case is the half-brother of Christopher Sailor. 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.

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Details

Case: [2003] QCA 227
Decision Date: 26 May 2003

CaseChat Overview and Summary

The case involved the Attorney-General of Queensland appealing against the sentence given to the respondent, who had pleaded guilty to burglary, assault occasioning bodily harm, and wilful damage. The respondent was sentenced to imprisonment for three months, 12 months, and 12 months respectively, with the sentences to be served by way of an intensive corrective order. The Attorney-General argued that the sentence was manifestly inadequate.

The central legal issue before the court was whether the sentence imposed was manifestly inadequate. This question required the court to consider the nature and severity of the crimes, the respondent's remorse, and the appropriate punishment in light of these factors. The court also had to assess whether the sentence complied with the principles established in previous cases.

The court examined the principles set out in R v Bazley and Attorney-General of Queensland, which indicated that a manifestly inadequate sentence is one that is so lenient as to shock the conscience of the court. The court noted that the respondent had shown remorse and had served four months of the intensive correction order satisfactorily by the time of the appeal. However, the court distinguished this case from R v Brelsford and R v Williamson, which involved less serious offences. The court also considered R v Salmon; ex parte Attorney-General of Queensland and R v Frazer, which provided guidance on the appropriate punishment for similar offences. Ultimately, the court found that the sentence was not manifestly inadequate and dismissed the appeal against the sentence.

Orders

Orders of the court

Appeal against sentence dismissed

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.

CITATION:	R v Sailor; ex parte A-G (Qld) [2003] QCA 227
PARTIES:	R v SAILOR, Murray Wya (respondent) ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 55 of 2003 DC No 472 of 2002
DIVISION:	Court of Appeal - Cairns Circuit
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	26 May 2003
DELIVERED AT:	Cairns
HEARING DATE:	26 May 2003
JUDGES:	McMurdo P, Davies JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where respondent pleaded guilty to burglary, assault occasioning bodily harm and wilful damage - where respondent sentenced to imprisonment for three months, 12 months and 12 months respectively to be served by way of intensive corrective order - where respondent showed remorse - where respondent served four months of intensive correction order satisfactorily by time of appeal - whether sentence manifestly inadequate R v Bazley and Attorney-General of Queensland [1997] QCA 238; CA No 220 of 1997, 5 August 1997, applied R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, distinguished R v Frazer [1997] QCA 306; CA No 252 of 1997, 5 August 1997, distinguished R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262; CA No 155 of 2002, 5 February 2003, considered R v Williamson [1996] QCA 548; CA No 392 of 1996, 1 November 1996, distinguished
COUNSEL:	L J Clare for appellant B G Devereaux for respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondent