R v Sparks - [2004] QCA 454

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sparks [2004] QCA 454

PARTIES:

R
v
SPARKS, Diane Faye
(appellant/applicant)

FILE NO/S:

CA No 157 of 2004
CA No 243 of 2004
DC No 396 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

26 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2004

JUDGES:

Davies and McPherson JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Appeal against conviction dismissed
2.     Application for leave to appeal against sentence        allowed
3.     Appeal against sentence allowed only to the extent of        adding a declaration that a period of 73 days from        4 May 2004 to 15 July 2004 be imprisonment already        served under the sentence

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant was convicted of arson and fraud - where the appellant counselled and procured another to set fire to a residence in order to claim insurance - where the appellant submitted that evidence of conversations between herself and others in which she made references to starting fires were inadmissible and prejudicial - whether the learned trial judge erred in allowing the evidence to be admitted at trial

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - where the appellant submitted that the directions given by the learned trial judge with respect to the evidence of conversations by the appellant about starting fires invited the jury to consider the evidence as showing that the appellant had a propensity to burn houses - whether the learned trial judge erred in directing the jury on this evidence

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the appellant was sentenced to four years imprisonment for the offences of arson and fraud - where the appellant submitted that there was a lack of parity between the sentences imposed upon her and her accomplice - whether the sentence imposed is manifestly excessive in all the circumstances

Pfennig v The Queen (1995) 182 CLR 461, cited

R v O’Keefe [2000] 1 QdR 564, cited
TKWJ v The Queen (2002) 212 CLR 124, cited

COUNSEL:

G P Long for appellant/applicant
R G Martin for respondent

SOLICITORS:

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

DAVIES JA: After a trial in the District Court the appellant was convicted on 4 May 2004 of two offences, arson and fraud. She was sentenced on 15 July to four years imprisonment for the arson offence…

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 [2004] QCA 454
Case: [2004] QCA 454
Decision Date: 26 November 2004

CaseChat Overview and Summary

The appellant was convicted of arson and fraud after counselling and procuring another individual to set fire to a residence in order to claim insurance. The case was brought to the court for appeal on several grounds, including the improper admission or rejection of evidence, misdirection and non-direction of the jury, and the sentencing imposed. The appellant argued that the evidence of conversations in which she made references to starting fires was inadmissible and prejudicial. Additionally, the appellant claimed that the directions given by the trial judge with respect to the evidence invited the jury to consider it as showing a propensity to burn houses. Lastly, the appellant contested the disparity between the sentences imposed upon her and her accomplice, as well as the excessiveness of her sentence.
The court found that the evidence in question was admissible as it was relevant to the case and did not unfairly prejudice the appellant. The directions given to the jury were also deemed to be correct, as they accurately reflected the evidence presented. The court concluded that the sentence imposed on the appellant was not manifestly excessive or disproportionate when considering the circumstances of the offence and the appellant's role in it. However, the court did find that there was a lack of parity between the sentences imposed upon the appellant and her accomplice. As a result, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was allowed. The appeal against the sentence was also allowed to the extent of adding a declaration that a period of 73 days from 4 May 2004 to 15 July 2004 be counted as imprisonment already served under the sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence allowed

3. Appeal against sentence allowed only to the extent of adding a declaration that a period of 73 days from 4 May 2004 to 15 July 2004 be imprisonment already served under the sentence

Background

Background to the litigation

Full text does not contain this section.

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 [2004] QCA 454
PARTIES:	R v SPARKS, Diane Faye (appellant/applicant)
FILE NO/S:	CA No 157 of 2004 CA No 243 of 2004 DC No 396 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	26 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2004
JUDGES:	Davies and McPherson JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence allowed 3. Appeal against sentence allowed only to the extent of adding a declaration that a period of 73 days from 4 May 2004 to 15 July 2004 be imprisonment already served under the sentence
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant was convicted of arson and fraud - where the appellant counselled and procured another to set fire to a residence in order to claim insurance - where the appellant submitted that evidence of conversations between herself and others in which she made references to starting fires were inadmissible and prejudicial - whether the learned trial judge erred in allowing the evidence to be admitted at trial CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - GENERALLY - where the appellant submitted that the directions given by the learned trial judge with respect to the evidence of conversations by the appellant about starting fires invited the jury to consider the evidence as showing that the appellant had a propensity to burn houses - whether the learned trial judge erred in directing the jury on this evidence CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where the appellant was sentenced to four years imprisonment for the offences of arson and fraud - where the appellant submitted that there was a lack of parity between the sentences imposed upon her and her accomplice - whether the sentence imposed is manifestly excessive in all the circumstances Pfennig v The Queen (1995) 182 CLR 461, cited R v O’Keefe [2000] 1 QdR 564, cited TKWJ v The Queen (2002) 212 CLR 124, cited
COUNSEL:	G P Long for appellant/applicant R G Martin for respondent
SOLICITORS:	Legal Aid Queensland for appellant/applicant Director of Public Prosecutions (Queensland) for respondent