R v Staines - [2011] QCA 321

SUPREME COURT OF QUEENSLAND

CITATION:

R v Staines [2011] QCA 321

PARTIES:

R
v
STAINES, Arthur Michael
(applicant)

FILE NO/S:

CA No 194 of 2011
CA No 288 of 2011
DC No 182 of 2011
DC No 187 of 2011
DC No 933 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2011

JUDGES:

Muir and Chesterman JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 288 of 2011

Extend the time by which the applicant might appeal against the conviction of unlawfully possessing a .357 magnum revolver and sawn-off 12 gauge shotgun, both being Category H weapons for the purposes of the Weapons Act 1990 (Qld).1.

Allow the appeal and set aside the conviction for possessing those weapons.2.

In CA No 194 of 2011

1. Grant the applicant leave to appeal against the sentences imposed in the District Court on 9 June 2011.

2.Allow the appeal and vary the sentences imposed on that date by (i) substituting a sentence of four months for dangerous driving and (ii) ordering that the sentence of 18 months for possessing a shortened firearm without reasonable excuse be served concurrently with the activated suspended sentence.

Order that the sentence of four months be served cumulatively upon the activated balance of the suspended sentence.3.

Fix the parole eligibility date as 11 November 2011.4.

Otherwise confirm the orders made by the District Court.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a motor vehicle and two summary offences under the Weapons Act 1990 (Qld) – where the applicant was sentenced to the maximum penalty of three years’ imprisonment for dangerous driving and 18 months’ imprisonment for each of the summary weapons offences – where sentences were to be served concurrently but were made cumulative upon the activated balance of a suspended sentence – where the applicant sought leave to appeal against the severity of the sentences – whether the sentence was manifestly excessive and/or oppressive

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – MISCARRIAGE OF SENTENCING DISCRETION – where the applicant was convicted and sentenced to 18 months’ imprisonment for resisting arrest, an offence with which he had not been charged – whether the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST CONVICTION – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the weapons offences could not properly be dealt with summarily in the District Court – where the applicant was given leave to file a Notice of Appeal against his conviction and time was extended to allow the appeal to be heard

CRIMINAL LAW – APPEAL AND NEW…

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 Staines

Details

AGLC: R v Staines [2011] QCA 321
Case: [2011] QCA 321
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the case of R v Staines, the applicant, Staines, had pleaded guilty to dangerous operation of a motor vehicle and two summary offences under the Weapons Act 1990 (Qld). The District Court sentenced Staines to the maximum penalty of three years’ imprisonment for dangerous driving and 18 months’ imprisonment for each of the summary weapons offences. The sentences were to be served concurrently but were made cumulative upon the activated balance of a suspended sentence. Staines sought leave to appeal against the severity of the sentences, arguing that they were manifestly excessive and/or oppressive. Additionally, he argued that the sentencing discretion miscarried because he was convicted and sentenced for resisting arrest, an offence with which he had not been charged. The applicant also sought to appeal against his conviction for possessing the Category H weapons, as the District Court did not have jurisdiction to deal with the charges summarily.

The court was required to determine whether the sentences imposed were manifestly excessive or oppressive, and whether the sentencing discretion miscarried in the case of the resisting arrest charge. Furthermore, the court had to consider whether the applicant was entitled to appeal against his conviction for possessing the Category H weapons due to the District Court’s lack of jurisdiction. The court also needed to decide whether the time Staines had already spent in custody could be taken into account as a matter of practical justice.

The Court of Appeal allowed the appeal against the sentences imposed, finding that they were manifestly excessive. The court varied the sentences by substituting a sentence of four months for dangerous driving and ordering that the 18-month sentence for possessing a shortened firearm without reasonable excuse be served concurrently with the activated suspended sentence. The sentence of four months was to be served cumulatively upon the activated balance of the suspended sentence. The court granted the applicant leave to appeal against his conviction for possessing the Category H weapons, set aside the conviction, and extended the time for the appeal. The court fixed the parole eligibility date as 11 November 2011 and otherwise confirmed the orders made by the District Court.

In summary, the Court of Appeal allowed the appeal against the sentences and conviction, varied the sentences, set aside the conviction for possessing the Category H weapons, and extended the time for the appeal. The court also fixed the parole eligibility date and confirmed the other orders made by the District Court.

Orders

Orders of the court

In CA No 288 of 2011

Extend the time by which the applicant might appeal against the conviction of unlawfully possessing a .357 magnum revolver and sawn-off 12 gauge shotgun, both being Category H weapons for the purposes of the Weapons Act 1990 (Qld).1.

Allow the appeal and set aside the conviction for possessing those weapons.2.

In CA No 194 of 2011

1. Grant the applicant leave to appeal against the sentences imposed in the District Court on 9 June 2011.

2.Allow the appeal and vary the sentences imposed on that date by (i) substituting a sentence of four months for dangerous driving and (ii) ordering that the sentence of 18 months for possessing a shortened firearm without reasonable excuse be served concurrently with the activated suspended sentence.

Order that the sentence of four months be served cumulatively upon the activated balance of the suspended sentence.3.

Fix the parole eligibility date as 11 November 2011.4.

Otherwise confirm the orders made by the District Court.5.

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 Staines [2011] QCA 321
PARTIES:	R v STAINES, Arthur Michael (applicant)
FILE NO/S:	CA No 194 of 2011 CA No 288 of 2011 DC No 182 of 2011 DC No 187 of 2011 DC No 933 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	11 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2011
JUDGES:	Muir and Chesterman JJA and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 288 of 2011 Extend the time by which the applicant might appeal against the conviction of unlawfully possessing a .357 magnum revolver and sawn-off 12 gauge shotgun, both being Category H weapons for the purposes of the Weapons Act 1990 (Qld).1. Allow the appeal and set aside the conviction for possessing those weapons.2. In CA No 194 of 2011 1. Grant the applicant leave to appeal against the sentences imposed in the District Court on 9 June 2011. 2.Allow the appeal and vary the sentences imposed on that date by (i) substituting a sentence of four months for dangerous driving and (ii) ordering that the sentence of 18 months for possessing a shortened firearm without reasonable excuse be served concurrently with the activated suspended sentence. Order that the sentence of four months be served cumulatively upon the activated balance of the suspended sentence.3. Fix the parole eligibility date as 11 November 2011.4. Otherwise confirm the orders made by the District Court.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerous operation of a motor vehicle and two summary offences under the Weapons Act 1990 (Qld) – where the applicant was sentenced to the maximum penalty of three years’ imprisonment for dangerous driving and 18 months’ imprisonment for each of the summary weapons offences – where sentences were to be served concurrently but were made cumulative upon the activated balance of a suspended sentence – where the applicant sought leave to appeal against the severity of the sentences – whether the sentence was manifestly excessive and/or oppressive CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – MISCARRIAGE OF SENTENCING DISCRETION – where the applicant was convicted and sentenced to 18 months’ imprisonment for resisting arrest, an offence with which he had not been charged – whether the sentencing discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST CONVICTION – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the weapons offences could not properly be dealt with summarily in the District Court – where the applicant was given leave to file a Notice of Appeal against his conviction and time was extended to allow the appeal to be heard CRIMINAL LAW – APPEAL AND NEW…