R v San - [2005] QCA 114

COURT OF APPEAL [2005] QCA 114

McPHERSON JA
JERRARD JA
HELMAN J

CA No 400 of 2005

THE QUEEN
v
SAN	Applicant

BRISBANE

..DATE 14/04/2005

JUDGMENT

APPLICANT conducted his own case

MR D MEREDITH (instructed by the Office of the Director of Public Prosecutions) for the respondent

McPHERSON JA: I will ask Justice Helman to deliver reasons for judgment in this case.

HELMAN J: This is an application for leave to appeal against sentences. On 28 October 2004 the applicant came before the District Court at Ipswich. There were three indictments before the court, nos 101, 157 and 305 of 2004 as well as a bench charge sheet alleging a summary offence.

It is convenient to mention the charges in the indictments in the order in which it was alleged the offences were committed.

On indictment no 305 of 2004 the applicant was charged with breaking and entering premises in Brisbane (a café) on 5 May 2003 and stealing in the premises. He stole a quantity of alcohol, one measuring cup, and one pourer. He pleaded guilty to that charge on 28 October 2004 and the learned judge sentenced him to imprisonment for six months.

On indictment no 157 of 2004 the applicant was charged with three counts of wilful and unlawful damage to property (a glass display cabinet, a roller door, and a shop window), one count of stealing (two bottles of liquor), and one count of common assault on a security officer. All offences were committed in June 2003 - three on the 18^th, one on the 21^st and one on the 24^th - in Brisbane. The applicant pleaded guilty to those charges on 28 October 2004 and for each he was sentenced to imprisonment for twelve months.

On indictment no 101 of 2004 the applicant was charged with assault with intent to rape, rape, and assault occasioning bodily harm - all offences committed on 28 June 2003 at Ipswich and all offences committed on the same of woman. There was a typographical error in the last charge on the indictment, but no point has been taken about that. The applicant had pleaded guilty to those charges on 12 July 2004 and on 28 October 2004 her Honour sentenced him to imprisonment for four years for the assault with intent to rape, seven years for the rape and four years for the assault occasioning bodily harm; the sentences to be served concurrently with each other but cumulatively upon the sentences imposed in respect of the charges on the other indictments. Her Honour further ordered that the applicant be considered to be eligible for post-prison community-based release after he had served two and a half years. She declared 323 days in pre-sentence custody to be time served under the sentences.

On 28 October 2004 the applicant also pleaded guilty to a charge recorded on the bench charge sheet: possessing housebreaking implements on 18 June 2003 at Brisbane. For that, her Honour sentenced him to imprisonment…

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 San

Details

AGLC: R v San [2005] QCA 114
Case: [2005] QCA 114
Decision Date: 14/04/2005

CaseChat Overview and Summary

The Court of Appeal in the case of R v San heard an application for leave to appeal against sentences imposed by the District Court at Ipswich. The applicant, San, had been convicted of multiple offences, including breaking and entering, theft, wilful damage, assault, and sexual offences. The applicant had pleaded guilty to all charges and was sentenced to a cumulative term of eight years' imprisonment, with the possibility of post-prison community-based release after serving two and a half years. San appealed against the severity of the sentences, arguing that they were manifestly excessive. The court had to determine whether the sentences were indeed too harsh, considering the applicant's age, criminal history, and the nature of the offences.

The legal issues before the court were whether the sentences imposed on San were manifestly excessive and whether the court should grant leave to appeal against those sentences. The court had to consider the seriousness of the offences, San's criminal history, and the mitigating factors, such as his age and early plea. The court also had to compare the sentences imposed with those in similar cases to determine if they fell within the appropriate range.

The court dismissed San's application for leave to appeal against the sentences. Justice Helman, delivering the judgment, held that the sentences were justified, given San's extensive criminal history, the persistence and increasing gravity of the offences, and the violence of the sexual offences. The court noted that the sentences were within the appropriate range for such serious crimes, particularly when compared with a similar case, R v Basic. Justice Helman concluded that the sentences were amply justified and refused San's application. Justices McPherson and Jerrard concurred with this decision.

The court ordered that the application for leave to appeal against sentence was dismissed.

Orders