R v Sherman - [2007] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sherman [2007] QCA 322

PARTIES:

R
v
SHERMAN, Belinda Jane
(applicant)

FILE NO/S:

CA No 235 of 2007
DC No 1690 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2007

JUDGES:

Jerrard and Keane JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

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 REFUSED – PROPERTY OFFENCES – where applicant sentenced to two years imprisonment with parole fixed after three months for one count of armed robbery – whether sufficient weight given to amateur nature of offence, applicant's role as accessory and applicant's personal circumstances including youth and prospects of rehabilitation – whether non-custodial sentence should have been imposed

R v Getawan[2005] QCA 350; CA No 188 of 2005, 23 September 2005, cited

COUNSEL:

A W Moynihan SC, with K Prskalo, for the applicant
S G Bain for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 20 September 2007, the applicant was convicted on her plea of guilty of one count of armed robbery. She was sentenced to two years imprisonment with parole fixed at 14 December 2007, that is after serving approximately three months in actual custody.

The applicant was also disqualified from holding a drivers’ licence for a period of 12 months.

The applicant seeks leave to appeal against her sentence on the ground that it was manifestly excessive in all the circumstances.

The offence was committed on 7 October 2006. At the time the applicant was living with her co-offender Brett Schultz. He was a drug addict. He had no prior convictions.

Schultz decided to rob a liquor store at Ellengrove. The applicant had previously worked at the liquor store, but she did not knowingly contribute to the planning of the robbery.

She tried to persuade Schultz not to do it. Schultz was, however, determined to go ahead with his plan. He said that he would do it whether or not she helped him. She thus had a choice. She chose to help him. She drove him to and from the liquor store.

Schultz was armed with a wooden bat. The applicant knew that he was so armed. He waited in the stairwell outside the store until 8.00pm when he knew that the two young female attendants, one of whom had been friendly with the applicant, would be counting the day's takings. Schultz entered the store waving the bat and demanded money. One of the young women threw a pencil case containing the day's taking of $1,808 to him. Schultz then…

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 Sherman

Details

AGLC: R v Sherman [2007] QCA 322
Case: [2007] QCA 322
Decision Date: 3 October 2007

CaseChat Overview and Summary

In the matter of R v Sherman, the appellant was convicted of one count of armed robbery and sentenced to a two-year imprisonment term with parole fixed after three months. Sherman appealed against his sentence, arguing that the trial judge did not adequately consider several mitigating factors. These included the amateur nature of the offence, the appellant's role as an accessory, and his personal circumstances such as his youth and potential for rehabilitation. The court was required to determine whether the trial judge's sentence was appropriate and if a non-custodial sentence should have been imposed.

The appeal court considered the legal framework for sentencing and the principles guiding the imposition of sentences for armed robbery. It examined whether the trial judge sufficiently accounted for the mitigating factors presented by the appellant. The court also evaluated the seriousness of the offence and the need for deterrence and denunciation, weighing these against the appellant's personal circumstances.

The appeal court concluded that the trial judge had considered the relevant mitigating factors and had appropriately balanced these against the need for punishment and deterrence. The court found that the sentence imposed was not manifestly excessive and that the trial judge had not erred in declining to impose a non-custodial sentence. Consequently, the appeal against the sentence was dismissed, and the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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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 Sherman [2007] QCA 322
PARTIES:	R v SHERMAN, Belinda Jane (applicant)
FILE NO/S:	CA No 235 of 2007 DC No 1690 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	3 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2007
JUDGES:	Jerrard and Keane JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
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 REFUSED – PROPERTY OFFENCES – where applicant sentenced to two years imprisonment with parole fixed after three months for one count of armed robbery – whether sufficient weight given to amateur nature of offence, applicant's role as accessory and applicant's personal circumstances including youth and prospects of rehabilitation – whether non-custodial sentence should have been imposed R v Getawan[2005] QCA 350; CA No 188 of 2005, 23 September 2005, cited
COUNSEL:	A W Moynihan SC, with K Prskalo, for the applicant S G Bain for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent