R v SBS - [2010] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBS [2010] QCA 108

PARTIES:

R
v
SBS
(applicant/appellant)

FILE NO/S:

CA No 132 of 2009
DC No 1191 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2010

JUDGES:

McMurdo P, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal against sentence is granted.1.

The appeal allowed and the sentences in respect of counts 3, 8, 9, 10, 11, 13 and 14 are set aside.2.

Instead, a sentence on each of those counts of nine and a half years imprisonment is imposed.3.

The date at which S is eligible for release on parole is set at 1 December 2011.4.

The sentence imposed at first instance is otherwise confirmed.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to seven counts of armed robbery, four counts of unlawful use of a motor vehicle with circumstances of aggravation, two counts of stealing, one count of breaking and entering premises and one count of arson – applicant sentenced to a total of 11 years imprisonment, serving over eight and a half years imprisonment before becoming eligible for parole – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – older co-offender with more significant criminal history sentenced to nine and a half years imprisonment with parole eligibility after four and a half years – whether applicant's sentence excessive considering co-offender's sentence

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – applicant undertook to give evidence against co-offenders – sentenced pursuant to s 13A Penalties and Sentences Act 1992 (Qld) – whether applicant's sentence excessive considering cooperation with authorities

Penalties and Sentences Act 1992 (Qld), s 13A

R v D & Attorney-General of Queensland[1995] QCA 332, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v HAY [2010] QCA 107, cited
R v M, unreported, District Court of Queensland, Judge Clare SC, Indictment No 2455 of 2008, 4 March 2009, considered
R v PX [2005] QCA 246, cited
R v SBI[2009] QCA 73, cited
R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited

COUNSEL:

The appellant appeared on his own behalf
M J Copley SC for the respondent

SOLICITORS:

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

McMURDO P: The applicant, S, pleaded guilty in the District Court at Brisbane on 15 May 2009 to seven counts of armed robbery, four counts of unlawful use of a motor vehicle with…

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 SBS

Details

AGLC: R v SBS [2010] QCA 108
Case: [2010] QCA 108
Decision Date: 14 May 2010

CaseChat Overview and Summary

The applicant appealed against his sentence for multiple criminal offences, arguing it was manifestly excessive. The case involved seven counts of armed robbery, among other charges, and the applicant had already served over eight and a half years in prison. The High Court of Australia heard the appeal against the sentence imposed by the lower court. The central legal issue was whether the sentence of eleven years was manifestly excessive, considering the applicant's cooperation with authorities and the sentences received by co-offenders.

The court considered the principle of parity between co-offenders and the applicant's cooperation with the police. It was noted that one co-offender with a more significant criminal history was sentenced to nine and a half years with parole eligibility after four and a half years. The court also considered the applicant's cooperation, including giving evidence against co-offenders, under section 13A of the Penalties and Sentences Act 1992 (Qld). The court concluded that the applicant's sentence was indeed manifestly excessive given these factors.

The court allowed the appeal and set aside the sentences in respect of specific counts. Instead, it imposed a sentence of nine and a half years imprisonment on each of those counts, with parole eligibility set at 1 December 2011. The remainder of the original sentence was confirmed. This outcome reflects the court's view that the original sentence was too severe when considering the mitigating factors and the sentences of co-offenders.

Orders

Orders of the court

The application for leave to appeal against sentence is granted.1.

The appeal allowed and the sentences in respect of counts 3, 8, 9, 10, 11, 13 and 14 are set aside.2.

Instead, a sentence on each of those counts of nine and a half years imprisonment is imposed.3.

The date at which S is eligible for release on parole is set at 1 December 2011.4.

The sentence imposed at first instance is otherwise confirmed.5.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v SBS [2010] QCA 108
PARTIES:	R v SBS (applicant/appellant)
FILE NO/S:	CA No 132 of 2009 DC No 1191 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2010
JUDGES:	McMurdo P, Holmes and Muir JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application for leave to appeal against sentence is granted.1. The appeal allowed and the sentences in respect of counts 3, 8, 9, 10, 11, 13 and 14 are set aside.2. Instead, a sentence on each of those counts of nine and a half years imprisonment is imposed.3. The date at which S is eligible for release on parole is set at 1 December 2011.4. The sentence imposed at first instance is otherwise confirmed.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – applicant pleaded guilty to seven counts of armed robbery, four counts of unlawful use of a motor vehicle with circumstances of aggravation, two counts of stealing, one count of breaking and entering premises and one count of arson – applicant sentenced to a total of 11 years imprisonment, serving over eight and a half years imprisonment before becoming eligible for parole – whether the sentence imposed was manifestly excessive CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GENERAL PRINCIPLES – older co-offender with more significant criminal history sentenced to nine and a half years imprisonment with parole eligibility after four and a half years – whether applicant's sentence excessive considering co-offender's sentence CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – applicant undertook to give evidence against co-offenders – sentenced pursuant to s 13A Penalties and Sentences Act 1992 (Qld) – whether applicant's sentence excessive considering cooperation with authorities Penalties and Sentences Act 1992 (Qld), s 13A R v D & Attorney-General of Queensland[1995] QCA 332, cited R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited R v HAY [2010] QCA 107, cited R v M, unreported, District Court of Queensland, Judge Clare SC, Indictment No 2455 of 2008, 4 March 2009, considered R v PX [2005] QCA 246, cited R v SBI[2009] QCA 73, cited R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited
COUNSEL:	The appellant appeared on his own behalf M J Copley SC for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent