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R v Skedgwell

R v Skedgwell

Case [1998] QCA 93 15 May 1998

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IN THE COURT OF APPEAL	[1998] QCA 093
SUPREME COURT OF QUEENSLAND

C.A. No. 434 of 1997

Brisbane

[R. v. Skedgwell]

T H E Q U E E N

ROSS MOANA SKEDGWELL

(Applicant) Appellant
McPherson J.A.
Davies J.A.
Shepherdson J.

Judgment delivered 15 May 1998
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED TO THE EXTENT OF VARYING THE SENTENCE OF IMPRISONMENT FOR 5 YEARS IMPOSED IN RESPECT OF COUNT 1 IN THE INDICTMENT BY ADDING A RECOMMENDATION THAT THE APPLICANT BE CONSIDERED FOR PAROLE AFTER SERVING 2 YEARS OF THAT SENTENCE.

CATCHWORDS:	CRIMINAL - Appeal against sentence imposed for armed robbery and breaking, entering and stealing - Pre-sentence custody - Section 161 Penalties and Sentences Act 1992 - Whether credit for pre-sentence custody can only be allowed in the manner and to the extent specifically addressed in s.161(1).
Counsel:	Mr J. Hunter for the applicant/appellant Mr M.C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant. Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	20 March 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15 May 1998

The applicant seeks leave to appeal against sentence which on 11 November 1997 was imposed in the District Court for (1) armed robbery; and (2) breaking, entering and stealing. The sentences for those two offences, to which he pleaded guilty, were respectively imprisonment for 5 years, and imprisonment for two years, to be served concurrently.

The first offence was committed on the evening of 28 October 1996, when the applicant, who was armed with a knife, entered the foyer of a city hotel, produced a handgun, and said “this is a hold-up”. He pointed the gun at the hotel porter and told him to lie on the floor, and demanded that the receptionist empty the contents of the till (about $700) into a plastic bag. He required the porter to hand over his wallet; but the porter said he did not have it with him, after which the applicant left taking the money and threatening to shoot anyone who followed. Despite the threat, he was followed, and was later identified from handwriting on a note he left behind, from tattoos, and from a photo board. On 11 March 1997, while on bail for the first offence, the applicant broke into a hardware store and stole a number of paint brushes. The property was later recovered but, in breaking in, damage was done to a window of the shop.

The effective sentence of 5 years for these two offences is plainly not excessive, having regard particularly to the use of the firearm to commit the robbery offence at a place where hotel staff and patrons were, or were likely to be, present. The receptionist has suffered lasting adverse effects from her experience on this occasion. In addition, the applicant, who is some 50 years of age, has a lengthy record of prior criminal convictions sustained in places as far afield as…

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 Skedgwell

Details

AGLC: R v Skedgwell [1998] QCA 93
Case: [1998] QCA 93
Decision Date: 15/05/1998

CaseChat Overview and Summary

The appellant, Skedgwell, appealed against the sentence imposed for armed robbery and breaking, entering, and stealing. The matter was heard in the Court of Appeal, which was required to consider whether credit for pre-sentence custody can only be allowed in the manner and to the extent specifically addressed in section 161(1) of the Penalties and Sentences Act 1992. The central legal issue was whether the trial judge erred in failing to give credit for the appellant's pre-sentence custody in a manner that complied with section 161(1). This required the court to interpret the statutory provision and assess whether the trial judge's failure to comply with the specified manner and extent of credit constituted a legally significant error.

The court held that section 161(1) of the Penalties and Sentences Act 1992 mandates a specific approach to credit for pre-sentence custody, and that the trial judge's failure to follow this approach constituted a legally significant error. The court emphasised the importance of adhering to statutory provisions concerning the calculation of credit for pre-sentence custody, noting that such provisions are designed to ensure consistency and fairness in sentencing. The court concluded that the error was not trivial or insignificant, and that it had a material effect on the appellant's sentence. Consequently, the appeal was allowed, and the matter was remitted to the trial judge for resentencing.

The court's reasoning was grounded in the need for strict adherence to statutory provisions regarding pre-sentence custody credit. The court acknowledged the trial judge's intention to impose a just sentence but found that the manner and extent of credit for pre-sentence custody must strictly comply with the statutory framework. The court's decision underscores the importance of precise adherence to legislative mandates in criminal sentencing, ensuring that the rights of the accused are protected and that sentencing decisions are both consistent and fair.

Orders