R v Shillingsworth - [2001] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION: R v Shillingsworth [2001] QCA 172

PARTIES: R
v
SHILLINGSWORTH, Richard Lloyd
(applicant)

FILE NO/S: CA No 337 of 2000
DC No 3319 of 1999

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 11 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 18 April 2001

JUDGES: Thomas and Williams JJA, White J
Separate reasons for judgment of each member of the Court, each concurring as the orders made

ORDER:
1.   Grant leave to appeal against sentence.

2.   Allow the appeal with respect to the sentence imposed on the counts of unlawful wounding and entering a dwelling with intent, and in lieu of the sentences imposed order that the applicant be imprisoned for a period of 12 months on the count of unlawful wounding and 12 months on the count of entering a dwelling with intent.

3.   Otherwise the orders made on sentence should stand.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PAROLE AND EFFECT OF BREACH OF PAROLE - where applicant on parole at time of committing offences – considering the statutory framework for sentencing, the ‘totality principle’ cannot be applied directly – the function of the sentencing judge is to impose a sentence having regard to the criminality of the current offences; in doing so s 9 Penalties and Sentences Act requires the Judge to consider that the sentence will be cumulative upon a sentence for past offences

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 GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –where applicant pleaded guilty to unlawful wounding, being in a dwelling with intent to commit an indictable offence and wilfully and unlawfully destroying a toilet – a starting point of four to five years imprisonment is too high for the offence of wounding – a starting point of no more than three years is appropriate

Corrective Services Act 1988 (Qld), s 187, 190, 207B
Criminal Code (Qld), s 323

Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(2)(l) and (m), s 156A,

Supreme Court of Queensland Act 1991 (Qld), s 8, s 9

Harris v Muirhead [1993] 2 Qd R 527, cited

R v Anderson CA No 90 of 1998, 11 September 1998, considered

R v Bojovic [2000] 2 Qd R 183, applied
R v Booth [2001] 1 Qd R 393, considered

R v Briese ex parte A-G [1998] 1 Qd R 487; (1997) 92 A Crim R 75, cited

R v Coonan CA No 83 of 1995, 26 April 1995, applied
R v Byrnes CA No 126 of 1999, 18 June 1999, considered

R v Maclean and Bannerman [2000] QCA 367; CA Nos 71 and 98 of 2000, 12 September 2000, considered

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: [2001] QCA 172
Decision Date: 11 May 2001

CaseChat Overview and Summary

In the case of R v Shillingsworth, the applicant was on parole at the time of committing further offences. He pleaded guilty to unlawful wounding, being in a dwelling with intent to commit an indictable offence, and wilfully and unlawfully destroying a toilet. The primary issue before the court was whether the sentence imposed was appropriate, particularly considering the applicant's status as being on parole at the time of the new offences.

The court examined the statutory framework for sentencing, specifically focusing on the requirement to consider the criminality of the current offences while also ensuring the sentence is cumulative upon any prior sentences. The 'totality principle' could not be applied directly, as it is the sentencing judge's responsibility to impose a sentence that reflects the criminality of the current offences, taking into account the need for the sentence to be cumulative. The court held that the starting point of four to five years imprisonment for the offence of unlawful wounding was too high and that a starting point of no more than three years was more appropriate.

After considering the appropriate starting point and the need to reflect the criminality of the offences, the court granted leave to appeal against the sentence. It allowed the appeal in relation to the sentences imposed on the counts of unlawful wounding and entering a dwelling with intent, and ordered that the applicant be imprisoned for a period of 12 months on the count of unlawful wounding and 12 months on the count of entering a dwelling with intent. The orders made on sentence with respect to the offence of wilfully and unlawfully destroying a toilet were to stand.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Allow the appeal with respect to the sentence imposed on the counts of unlawful wounding and entering a dwelling with intent, and in lieu of the sentences imposed order that the applicant be imprisoned for a period of 12 months on the count of unlawful wounding and 12 months on the count of entering a dwelling with intent.

3. Otherwise the orders made on sentence should stand.

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 Shillingsworth [2001] QCA 172
PARTIES:	R v SHILLINGSWORTH, Richard Lloyd (applicant)
FILE NO/S:	CA No 337 of 2000 DC No 3319 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2001
JUDGES:	Thomas and Williams JJA, White J Separate reasons for judgment of each member of the Court, each concurring as the orders made
ORDER:	1. Grant leave to appeal against sentence. 2. Allow the appeal with respect to the sentence imposed on the counts of unlawful wounding and entering a dwelling with intent, and in lieu of the sentences imposed order that the applicant be imprisoned for a period of 12 months on the count of unlawful wounding and 12 months on the count of entering a dwelling with intent. 3. Otherwise the orders made on sentence should stand.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – OFFENCE COMMITTED WHILE ON BAIL OR PAROLE AND EFFECT OF BREACH OF PAROLE - where applicant on parole at time of committing offences – considering the statutory framework for sentencing, the ‘totality principle’ cannot be applied directly – the function of the sentencing judge is to impose a sentence having regard to the criminality of the current offences; in doing so s 9 Penalties and Sentences Act requires the Judge to consider that the sentence will be cumulative upon a sentence for past offences 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 GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON –where applicant pleaded guilty to unlawful wounding, being in a dwelling with intent to commit an indictable offence and wilfully and unlawfully destroying a toilet – a starting point of four to five years imprisonment is too high for the offence of wounding – a starting point of no more than three years is appropriate Corrective Services Act 1988 (Qld), s 187, 190, 207B Criminal Code (Qld), s 323 Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(2)(l) and (m), s 156A, Supreme Court of Queensland Act 1991 (Qld), s 8, s 9 Harris v Muirhead [1993] 2 Qd R 527, cited R v Anderson CA No 90 of 1998, 11 September 1998, considered R v Bojovic [2000] 2 Qd R 183, applied R v Booth [2001] 1 Qd R 393, considered R v Briese ex parte A-G [1998] 1 Qd R 487; (1997) 92 A Crim R 75, cited R v Coonan CA No 83 of 1995, 26 April 1995, applied R v Byrnes CA No 126 of 1999, 18 June 1999, considered R v Maclean and Bannerman [2000] QCA 367; CA Nos 71 and 98 of 2000, 12 September 2000, considered