R v Sparks - [2006] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sparks [2006] QCA 286

PARTIES:

R
v
SPARKS, Adam Shay
(applicant/appellant)

FILE NO/S:

CA No 78 of 2006
DC No 40 of 2006
DC No 41 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2006

JUDGES:

McMurdo P, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence allowed

2. Appeal against sentence allowed

3. Set aside the four year head terms imposed in respect of counts 1 and 2 on Indictment Number 40 of 2006, for the offences of breaking, entering, and stealing; and order instead that Adam Shay Sparks be sentenced to 21 months imprisonment for each of those offences, those sentences to be concurrent but to be cumulative upon the sentences imposed on 12 April 2005

4. Declare that the 299 days spent in custody from 17 June 2004 to 11 April 2005 to be time already served under this sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant pleaded guilty to two counts of breaking entering and stealing and one count of receiving stolen property – sentenced to four years imprisonment suspended after serving 18 months with an operational period of five years on each of the two break and entering counts and 299 days of pre-sentence custody was declared time already served – sentencing judge ordered that those sentences be served cumulatively upon the completion of a sentence of imprisonment that the applicant was then undergoing (three years three months imprisonment, less 178 days already served in pre-sentence custody) – whether the sentence was manifestly excessive by virtue of the order for it to be served cumulatively upon the sentence the applicant was serving

Mill v The Queen (1988) 166 CLR 59, considered
R v Meredith [2002] QCA 481; CA No 90 of 2002, 8 November 2002, considered

COUNSEL:

M A Green for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: I agree with the orders proposed by Jerrard JA and with his reasons.

JERRARD JA: On 6 March 2006 Mr Sparks pleaded guilty to an indictment charging him with two counts of breaking, entering and stealing, those offences being committed between 11 June 2004 and 15 June 2004 at Mackay; and to an ex-officio indictment charging him with a count of receiving stolen money on 16 November 2002 at Pialba. He was sentenced to four years imprisonment, to be suspended after he had served 18 months of that term, with an operational period of five years, on each of the two counts of…

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 Sparks

Details

AGLC: R v Sparks [2006] QCA 286
Case: [2006] QCA 286
Decision Date: 4 August 2006

CaseChat Overview and Summary

The case of R v Sparks involved an appeal against the sentence imposed by the Court of Criminal Appeal. The applicant, Adam Shay Sparks, had pleaded guilty to two counts of breaking entering and stealing and one count of receiving stolen property. The sentencing judge ordered that the sentences for the break and enter offences be served cumulatively upon the completion of a sentence the applicant was already serving. The applicant sought to appeal the sentence on the basis that it was manifestly excessive due to the order for it to be served cumulatively. The appeal was heard and determined by the Court of Criminal Appeal.

The legal issues that arose in this appeal centred on whether the sentence imposed by the sentencing judge was manifestly excessive. Specifically, the Court had to consider whether the order for the sentences to be served cumulatively was unjust and thus rendered the sentence manifestly excessive. The Court needed to determine if the cumulative order was appropriate and whether the length of the sentence was proportionate to the offences committed.

In its decision, the Court of Criminal Appeal found that the order for the sentences to be served cumulatively was inappropriate and that the four-year head terms imposed were manifestly excessive. The Court concluded that the sentences should be reduced to 21 months imprisonment for each of the break and enter offences, with those sentences to run concurrently but cumulatively upon the sentences imposed on 12 April 2005. The Court also declared that the 299 days spent in custody from 17 June 2004 to 11 April 2005 would be counted as time already served under this new sentence.

The Court granted the application for leave to appeal against the sentence and allowed the appeal. The Court set aside the four-year head terms imposed for the break and enter offences and ordered that Adam Shay Sparks be sentenced to 21 months imprisonment for each of those offences, with the sentences to run concurrently but cumulatively upon the sentences imposed on 12 April 2005. Additionally, the Court declared that the 299 days spent in custody from 17 June 2004 to 11 April 2005 would be counted as time already served under this sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Appeal against sentence allowed

3. Set aside the four year head terms imposed in respect of counts 1 and 2 on Indictment Number 40 of 2006, for the offences of breaking, entering, and stealing; and order instead that Adam Shay Sparks be sentenced to 21 months imprisonment for each of those offences, those sentences to be concurrent but to be cumulative upon the sentences imposed on 12 April 2005

4. Declare that the 299 days spent in custody from 17 June 2004 to 11 April 2005 to be time already served under this sentence.

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 Sparks [2006] QCA 286
PARTIES:	R v SPARKS, Adam Shay (applicant/appellant)
FILE NO/S:	CA No 78 of 2006 DC No 40 of 2006 DC No 41 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	4 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2006
JUDGES:	McMurdo P, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence allowed 2. Appeal against sentence allowed 3. Set aside the four year head terms imposed in respect of counts 1 and 2 on Indictment Number 40 of 2006, for the offences of breaking, entering, and stealing; and order instead that Adam Shay Sparks be sentenced to 21 months imprisonment for each of those offences, those sentences to be concurrent but to be cumulative upon the sentences imposed on 12 April 2005 4. Declare that the 299 days spent in custody from 17 June 2004 to 11 April 2005 to be time already served under this sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant pleaded guilty to two counts of breaking entering and stealing and one count of receiving stolen property – sentenced to four years imprisonment suspended after serving 18 months with an operational period of five years on each of the two break and entering counts and 299 days of pre-sentence custody was declared time already served – sentencing judge ordered that those sentences be served cumulatively upon the completion of a sentence of imprisonment that the applicant was then undergoing (three years three months imprisonment, less 178 days already served in pre-sentence custody) – whether the sentence was manifestly excessive by virtue of the order for it to be served cumulatively upon the sentence the applicant was serving Mill v The Queen (1988) 166 CLR 59, considered R v Meredith [2002] QCA 481; CA No 90 of 2002, 8 November 2002, considered
COUNSEL:	M A Green for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent