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R v Silasack

R v Silasack

Case [2009] QCA 88 17 April 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Silasack [2009] QCA 88

PARTIES:

R
v
SILASACK, Anousin
(applicant/appellant)

FILE NO/S:

CA No 344 of 2008
DC No 78 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

17 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2009

JUDGES:

Keane and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application, allow the appeal, and instead of the sentence imposed in the District Court substitute the following sentence.

2.   For the count of attempted arson, sentence the applicant to five years imprisonment.

3.   For each of the counts of stealing, fraud and attempted fraud, sentence the applicant to imprisonment for one year, each such term of imprisonment to be served concurrently with each other such term.

4.   Order that the one year term of imprisonment for those counts of stealing, fraud and attempted fraud is to be served cumulatively upon the five year term of imprisonment imposed for the count of attempted arson.

5.   Declare that the period of pre-sentence custody of 80 days from 2 September 2008 to 20 November 2008 be deemed to be time served in respect of the term of imprisonment of five years for the count of attempted arson.

6.   Order that the applicant be eligible for release on parole on 31 August 2010.

7.   In respect of each of the summary matters, confirm the order made by the sentencing judge that the applicant is convicted and not further punished.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of attempted arson and of multiple offences of dishonesty and summary offences – where applicant sentenced to seven years imprisonment for the count of attempted arson and concurrent two year terms of imprisonment for the dishonesty offences, with eligibility for parole after serving two years imprisonment – where applicant also ordered to pay restitution of $24,231 within 12 months of his release from imprisonment, and if in default of payment by that time, that the applicant be imprisoned for six months – whether sentence manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 36(2), s 39(2)(b), s 182A(2)(b)

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Ball[2001] QCA 201, cited
R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited
R v Cramond[1999] QCA 11, cited
R v Crompton[2009] QCA 19, cited
R v Drinkwater[2006] QCA 82, considered
R v Henderson[1993] QCA 336, cited
R v Johnson[2005] QCA 265, cited
R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249, cited

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 Silasack

Details

AGLC: R v Silasack [2009] QCA 88
Case: [2009] QCA 88
Decision Date: 17 April 2009

CaseChat Overview and Summary

The matter of R v Silasack was before the court on appeal against sentence. The applicant had been convicted of one count of attempted arson and multiple offences of dishonesty and summary offences. The District Court sentenced the applicant to seven years imprisonment for the count of attempted arson and concurrent two-year terms of imprisonment for the dishonesty offences, with eligibility for parole after serving two years imprisonment. The applicant was also ordered to pay restitution of $24,231 within 12 months of his release from imprisonment, and if in default of payment by that time, that the applicant be imprisoned for six months. The applicant appealed against the sentence, arguing it was manifestly excessive. The court was required to decide whether the sentence imposed was manifestly excessive or inadequate. The court considered the nature and circumstances of the offences, the applicant's criminal history, and the objectives of sentencing. The court found that the sentence imposed was manifestly excessive and granted the application, allowing the appeal. The court substituted a new sentence, reducing the term of imprisonment for the count of attempted arson to five years, and ordering that the one-year term of imprisonment for the counts of stealing, fraud, and attempted fraud be served cumulatively upon the five-year term of imprisonment imposed for the count of attempted arson. The court also deemed the period of pre-sentence custody to be time served in respect of the term of imprisonment of five years for the count of attempted arson, and ordered that the applicant be eligible for release on parole on a specified date. Finally, the court confirmed the order made by the sentencing judge that the applicant was convicted and not further punished in respect of the summary matters.

Orders

Orders of the court

1. Grant the application, allow the appeal, and instead of the sentence imposed in the District Court substitute the following sentence.

2. For the count of attempted arson, sentence the applicant to five years imprisonment.

3. For each of the counts of stealing, fraud and attempted fraud, sentence the applicant to imprisonment for one year, each such term of imprisonment to be served concurrently with each other such term.

4. Order that the one year term of imprisonment for those counts of stealing, fraud and attempted fraud is to be served cumulatively upon the five year term of imprisonment imposed for the count of attempted arson.

5. Declare that the period of pre-sentence custody of 80 days from 2 September 2008 to 20 November 2008 be deemed to be time served in respect of the term of imprisonment of five years for the count of attempted arson.

6. Order that the applicant be eligible for release on parole on 31 August 2010.

7. In respect of each of the summary matters, confirm the order made by the sentencing judge that the applicant is convicted and not further punished.

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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Actions

Citations

R v Silasack [2009] QCA 88

Most Recent Citation

R v Matauaina [2011] QCA 344

Cases Citing This Decision

R v Winkelmann [2022] QDC 49
Citation 1 (Para 16)

…ixing of parole entitlement for that period of imprisonment.[27] [23] [2022] QCA 18 at [33]. [24] Ibid at [26(c)]. [25] For example see: R v Silasack [2009] QCA 88 at [46]-[47] and R v Barry [2011] QCA 119 at [16]-[18]. As was the case here, different considerations arise in respect taking into account the exten…
R v Cooper [2021] QCA 169
Citation 2 (Para 7)

…,[12] R v Drinkwater ,[13] R v Porter ,[14] and R v Francis .[15] [8] R v Johnson [2005] QCA 265. [9] R v Gwilliams [2008] QCA 40. [10] R v Silasack [2009] QCA 88. No-one suggested Silasack was comparable in the present case. [11] R v Leigh [1996] QCA 561. [12] R v Rhode [2001] QCA 328. [13] R v Drinkwater [200…
McIntyre v Commissioner of Police [2021] QDC 163
Citation 3 (Para 13)

…n-payment of compensation.” [17][2011] QCA 344, at [27]-[33]. [18][1997] 2 Qd R 472, at 477. [19]The footnote is: “See R v Silasack [2009] QCA 88, at [31] - [35], [49]; R v Shillingsworth [2002] 1 Qd R 527, at 528 [3] per Thomas JA.…
R v Kennedy [2017] QCA 272
Citation 4 (Para 16)

…to enjoy success having regard to the sentences imposed by this Court in R v Francis ,[1] R v Silasack [2] and R v Leslie .[3] [1][2014] QCA 258. [2][2009] QCA 88. [3][2016] QCA 15.…
R v Robertson [2017] QCA 164
Citation 5 (Para 4)

…atures: the corrupting of others to participate in the offending and the organising of the firebombing of the premises knowing they were occupied. [3][2009] QCA 88. [4][2001] QCA 328.…
Peberdy v Commissioner of Police [2017] QDC 138
Citation 6 (Para 31)

…[10]See R v Silasack [2009] QCA 88 at [31]-[35], [49]; R v Shillingsworth [2002] 1 Qd R 527 at 528 [3] per Thomas JA.…
Day v Commissioner of Police [2017] QDC 77
Citation 7 (Para 1)

…) and/or (ii)), and a default term is imposed if compensation is not paid, the order may make the overall sentence manifestly excessive: R v Silasack [2009] QCA 88, and R v Matauaina [2011] QCA 344.…
R v Flint [2015] QCA 275
Citation 8 (Para 3)

…al allowed and the sentence varied by setting aside the order that he pay $17,832.14 compensation. [9][1997] 1 Qd R 593. [10][2002] 1 Qd R 386. [11][2009] QCA 88. [12][2009] QCA 90. [13][2004] QCA 169. [14][2011] QCA 344.…
R v Caz and Da [2015] QChC 6
Citation 9 (Para 1)

…Although not argued, it is apparent that the Court of Appeal in R v Silasack [2009] QCA 88, did not regard itself as being constrained by the wording of s 9(2)(b)(i) of the Penalties and Sentences Act to ignore victim impact statements tendered below in relation to an attempted arson offence which involved the f…
R v Francis [2014] QCA 258
Citation 10 (Para 2)

…Gwilliams ;[10] R v Silasack ;[11] R v NL ;[12] and R v Porter .[13] [7][2005] QCA 265. [8][2006] QCA 150. [9][2007] QCA 249. [10][2008] QCA 40. [11][2009] QCA 88. [12][2011] QCA 113. [13][2014] QCA 14.…
R v Matauaina [2011] QCA 344
Citation 11

…9, considered R v Scott [1997] QCA 300, considered R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, cited R v Silasack [2009] QCA 88, cited R v Vinson [2002] QCA 379, considered Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied COUNSEL: K Prskalo for the applicant R G Martin SC for the resp…

See all citing cases →

Cases Cited

R v. Crompton [2009] QCA 19
Citation 1 (Para 1)

…er offences whilst on bail for earlier offences with which he had been charged: see R v Clements (1993) 68 A Crim R 167, [1993] QCA 245; R v Crompton [2009] QCA 19 at [30] – [32].…
R v Johnson [2007] QCA 249
Citation 2 (Para 1)

…Ball [2001] QCA 201 (five years imprisonment suspended after 16 months for an operational period of five years); R v Johnson (2007) 173 A Crim R 94, [2007] QCA 249 (four years imprisonment with parole eligibility after 15 months); and R v Johnson [2005] QCA 265 (four years imprisonment with a recommendation of p…
R v Cifuentes [2006] QCA 566
Citation 3 (Para 1)

…In relation to the offences of dishonesty, the applicant's counsel referred to R v Myles [2006] QCA 566, R v Vinson [2002] QCA 379 and R v Robinson; ex parte A-G (Qld) [2004] QCA 169. In R v Robinson , McMurdo P analysed comparable decisions involving misappropriation over a nine year period up to R v Vinson in w…
R v Drinkwater [2006] QCA 82
Citation 4 (Para 1)

…ation, and 12 months for assault occasioning bodily harm, all suspended after six months with an operational period of three years. In R v Drinkwater [2006] QCA 82 the Court refused an application for leave to appeal against sentences, following conviction after a trial, of six years imprisonment for extortion,…
R v Johnson [2005] QCA 265
Citation 5 (Para 1)

…sentences for the applicant's offence of attempted arson was four to five years imprisonment. He referred to Jerrard JA’s statement in R v Johnson [2005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) t…
Markarian v The Queen [2005] HCA 25
Citation 6 (Para 1)

…n the appropriate sentence in a subsequent case. The reasoning underlying a sentence must be accessible: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [39].…
R v Robinson; ex parte A-G (Qld) [2004] QCA 169
Citation 7 (Para 1)

…offences of dishonesty, the applicant's counsel referred to R v Myles [2006] QCA 566, R v Vinson [2002] QCA 379 and R v Robinson; ex parte A-G (Qld) [2004] QCA 169. In R v Robinson , McMurdo P analysed comparable decisions involving misappropriation over a nine year period up to R v Vinson in which the sums misa…
R v Nagy [2003] QCA 175
Citation 8 (Para 1)

…he sentencing judge erred in structuring the sentence. The applicant referred to the following statement by Williams JA in R v Nagy [2004] 1 Qd R 63, [2003] QCA 175 at [39]:…
R v Vinson [2002] QCA 379
Citation 9 (Para 1)

…In relation to the offences of dishonesty, the applicant's counsel referred to R v Myles [2006] QCA 566, R v Vinson [2002] QCA 379 and R v Robinson; ex parte A-G (Qld) [2004] QCA 169. In R v Robinson , McMurdo P analysed comparable decisions involving misappropriation over a nine year period up to R v Vinson in w…
R v Rhode [2001] QCA 328
Citation 10 (Para 1)

…pplicant's counsel referred to two decisions concerning sentences for offences that included attempted arson by the use of petrol bombs. In R v Rhode [2001] QCA 328 the Court refused an application for leave to appeal against sentences of two years imprisonment for attempted arson, 18 months imprisonment for ente…
R v Ball [2001] QCA 201
Citation 11 (Para 1)

…ces have been imposed. He referred to the following decisions concerning sentences for arson after the breakdown of a domestic relationship: R v Ball [2001] QCA 201 (five years imprisonment suspended after 16 months for an operational period of five years); R v Johnson (2007) 173 A Crim R 94, [2007] QCA 249 (four…
R v Cramond [1999] QCA 11
Citation 12 (Para 1)

…005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) that, "where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of ars…
R v Leigh [1996] QCA 561
Citation 13 (Para 1)

…Of the authorities cited by counsel, the sentencing judge found R v Leigh [1996] QCA 561 of the most assistance. The judge regarded the instant case as more serious than Leigh . The attempted arson could have had fatal consequences for the four occupants of the house if the fire had really taken hold. The victim…
R v Clements [1993] QCA 245
Citation 14 (Para 1)

…e applicant committed the later offences whilst on bail for earlier offences with which he had been charged: see R v Clements (1993) 68 A Crim R 167, [1993] QCA 245; R v Crompton [2009] QCA 19 at [30] – [32].…
Lowe v R [1984] HCA 46
Citation 15 (Para 1)

…n was appropriate, having regard to the applicant's much higher degree of culpability for the offence: cf Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46). The applicant’s counsel submitted instead that there has been a "distortion of the appropriate range for the most serious offence". This was said t…
R v Henderson [1993] QCA 336
Citation 16 (Para 1)

…to five years imprisonment. He referred to Jerrard JA’s statement in R v Johnson [2005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) that, "where there is no question of fraud and where the safety of…
QCA 336 and then repeated in R v Sharkey [1994] QCA 121
Citation 17 (Para 1)

…to Jerrard JA’s statement in R v Johnson [2005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) that, "where there is no question of fraud and where the safety of others is not a consideration, the appro…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 36(2)
2 mentions (from Para 1)
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention (from Para 1)

CITATION:	R v Silasack [2009] QCA 88
PARTIES:	R v SILASACK, Anousin (applicant/appellant)
FILE NO/S:	CA No 344 of 2008 DC No 78 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	17 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2009
JUDGES:	Keane and Fraser JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application, allow the appeal, and instead of the sentence imposed in the District Court substitute the following sentence. 2. For the count of attempted arson, sentence the applicant to five years imprisonment. 3. For each of the counts of stealing, fraud and attempted fraud, sentence the applicant to imprisonment for one year, each such term of imprisonment to be served concurrently with each other such term. 4. Order that the one year term of imprisonment for those counts of stealing, fraud and attempted fraud is to be served cumulatively upon the five year term of imprisonment imposed for the count of attempted arson. 5. Declare that the period of pre-sentence custody of 80 days from 2 September 2008 to 20 November 2008 be deemed to be time served in respect of the term of imprisonment of five years for the count of attempted arson. 6. Order that the applicant be eligible for release on parole on 31 August 2010. 7. In respect of each of the summary matters, confirm the order made by the sentencing judge that the applicant is convicted and not further punished.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of attempted arson and of multiple offences of dishonesty and summary offences – where applicant sentenced to seven years imprisonment for the count of attempted arson and concurrent two year terms of imprisonment for the dishonesty offences, with eligibility for parole after serving two years imprisonment – where applicant also ordered to pay restitution of $24,231 within 12 months of his release from imprisonment, and if in default of payment by that time, that the applicant be imprisoned for six months – whether sentence manifestly excessive Penalties and Sentences Act 1992 (Qld), s 36(2), s 39(2)(b), s 182A(2)(b) Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Ball[2001] QCA 201, cited R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited R v Cramond[1999] QCA 11, cited R v Crompton[2009] QCA 19, cited R v Drinkwater[2006] QCA 82, considered R v Henderson[1993] QCA 336, cited R v Johnson[2005] QCA 265, cited R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249, cited