R v Shearer - [1996] QCA 213

COURT OF APPEAL

[1996] QCA 213

McPHERSON JA
DEMACK J

WILLIAMS J

CA No 130 of 1996
THE QUEEN
v.

BRETT WAYNE SHEARER

BRISBANE
..DATE 05/06/96
050696 D.1 T 4/JP14 M/T COA133/96
WILLIAMS J: The applicant pleaded guilty to an indictment
containing 52 counts. There were 11 counts of house breaking;
14 of stealing; three of receiving; three of breaking, entering
and stealing; one of breaking and entering with intent; 17 of
attempted breaking and entering with intent and finally three of
attempted house breaking. Those offences all occurred between
10 August 1993 and 11 January 1994.

The plea of guilty was on 25 March 1996. Some of the delay can be explained by the fact that there were negotiations between prosecuting authorities and the applicant's solicitors as to the matters to which he was prepared to enter a plea.

The schedule, which was tendered before the sentencing Judge, shows that initially there were in excess of 100 charges laid by the police and they were integrated into the 52 counts to which the applicant ultimately pleaded guilty.

The learned sentencing Judge imposed sentences of four years imprisonment for the house breaking and breaking and entering and stealing counts; 12 months imprisonment on the receiving counts; and three years imprisonment on each of the others. All those sentences were to be served concurrently and there was a recommendation that the applicant be eligible for parole after serving 18 months. He also made a recommendation for counselling and treatment of the applicant whilst he was in custody.

It was not possible to put a precise value on the total value of
050696 D.1 T 4/JP14 M/T COA133/96
property stolen but it was said by the prosecutor and accepted
by the sentencing Judge to be somewhere between $30,000 and
$50,000. Unrecovered property and damage was assessed at over
$29,000.

I would specifically note that counts 34 and 35 on the indictment related to the theft of some $10,000 worth of jewellery from a Mrs Hutcheson. A victim impact statement from her was tendered and it does appear that the jewellery in question was of particular sentimental value. None of that was recovered. That, in my view, is of some significance because of an argument addressed to this Court based on disparity. I will come to that shortly.

It appears that the property generally the subject of the charges was property that was either readily disposable for cash or property which could be used by the applicant. It was mainly electrical items or jewellery that was taken.

The learned sentencing Judge did note a submission that the accused used furniture and white goods which he had stolen to furnish his place of residence.

It should be noted that the applicant had a minor criminal history. He had been convicted in the Melbourne Magistrates Court in 1983 of theft; convicted in the Prahran Magistrates Court in 1988 of assault; and there were further convictions for assault in the Prahran Magistrates Court in 1989.

050696…

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 Shearer

Details

AGLC: R v Shearer [1996] QCA 213
Case: [1996] QCA 213
Decision Date: 5/06/1996

CaseChat Overview and Summary

In the matter of R v. Shearer, the appellant contested the sentence imposed by the sentencing judge in the District Court. The appellant, Brett Wayne Shearer, had pleaded guilty to multiple counts of housebreaking, stealing, receiving stolen goods, and other related offences, which occurred between August 1993 and January 1994. The appellant's sentence consisted of concurrent terms of imprisonment, with a total effective custodial period of four years and three months, subject to eligibility for parole after serving 18 months. The appellant argued that the sentence was manifestly excessive when compared to a sentence imposed on another offender, Nicholas Ward, who was sentenced to 18 months imprisonment with eligibility for parole after five months. The appellant submitted that the disparity between the sentences warranted the intervention of the Court of Appeal.

The Court of Appeal considered the principles of disparity as established in previous cases, such as Lowe v. The Queen and Cox v. The Queen. The court acknowledged that the appellant's case involved 52 charges, while the comparison case involved eight overlapping charges. Furthermore, the court noted that the appellant's offences included the theft of $10,000 worth of sentimental jewellery, which was not present in the comparison case. The Court found that the appellant's sentence was within the range applicable to offences of this nature and extent, and there were no grounds to conclude that the two cases were substantially the same. Therefore, the Court held that the sentence imposed on the appellant was not manifestly excessive and did not warrant disparity.

The Court of Appeal dismissed the appellant's application for leave to appeal against the sentence imposed by the District Court. The order of the Court was that leave was refused, and the application for leave was dismissed.

Orders