R v Thomas - [2000] QCA 411

[2000] QCA 411

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MACKENZIE J

CA No 184 of 2000

THE QUEEN

ROBERT GRAHAM THOMAS

BRISBANE

..DATE 03/10/2000

JUDGMENT

DAVIES JA: The applicant's notice of appeal in this matter was an appeal against conviction as well as an application for leave to appeal against sentence. The former was not pursued and should be dismissed.

The applicant nevertheless pursues his application for leave to appeal against sentence which was one effectively of six years imprisonment with a recommendation for parole eligibility after two years, imposed in the District Court on 30 June last.

The offences for which that sentence was imposed were one of housebreaking with actual violence, one of robbery with personal violence, one of deprivation of liberty and one of unlawful use of a motor vehicle with a circumstance of aggravation. The sentence was imposed on the first of those offences, the others receiving sentences of four and a half years, two and a half years and three years respectively.

He was also at the same time sentenced to concurrent sentences for offences relating to the possession and production of marijuana, drink driving and unlicensed driving and a cumulative sentence was imposed for breach of bail.

The applicant at the time he committed these offences,
2 June 1999, was 32 years of age having been born on
1 October 1966. By that time he had accumulated a substantial criminal history in three States over a period since 1983 including convictions on no less than eight occasions for 42 breaking and entering offences. His longest sentence was a period of six months imprisonment which was imposed on three separate occasions.

On the morning on which these offences were committed, the complainant, a 37 year old married woman, was returning to her home with her younger preschool aged daughter having delivered her school aged daughter to school. The younger child remained outside to play while the complainant entered the house. She found her elder daughter's wardrobe door open but, thinking no more about it, went to her own bedroom where she found the appellant suddenly emerging from a walk in wardrobe. She screamed and a struggle ensued during which he knocked her to the floor and, despite her pleas, taped her eyes, mouth, hands and feet while holding her down with a knee in her back.

Although the appellant, in order to quieten the complainant during the course of their struggle, told her to be quiet and that he just wanted to leave, once he had successfully subdued her he then proceeded to ransack the house looking for other valuables. When he had assembled all the goods which he considered worthwhile, he packed them into her car which he then drove away.

During the whole of the time that the appellant was on the premises, the complainant was understandably terrified, not only for herself but for her young daughter who was outside. At one stage, she managed to at least partially free her…

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 Thomas

Details

AGLC: R v Thomas [2000] QCA 411
Case: [2000] QCA 411
Decision Date: 03/10/2000

CaseChat Overview and Summary

In the case of R v Thomas, the applicant appealed against a sentence imposed by the District Court. The applicant was convicted of housebreaking with actual violence, robbery with personal violence, deprivation of liberty, and unlawful use of a motor vehicle with a circumstance of aggravation. The applicant had a significant criminal history and was sentenced to six years imprisonment with a recommendation for parole eligibility after two years for the housebreaking offence. The applicant also received sentences for other related offences, which were to run concurrently. The applicant appealed against the sentence, arguing it was manifestly excessive.

The court was required to determine whether the sentence was manifestly excessive. The applicant's counsel referred to cases where sentences of five years or less were imposed for home invasions, some involving more violent conduct. However, the court noted that many of these cases were appeals dismissed by the Court of Appeal without comment on the sentence's severity. The court also considered the case of R v Wishart and Jenkins, where a sentence of six years was imposed for similar conduct, albeit with some mitigating factors. The court concluded that, taking into account the applicant's extensive criminal history and the severity of the offences, the sentence was not manifestly excessive.

The Court of Appeal, comprising McPherson J, Davies JA, and MacKenzie J, unanimously agreed that the sentence was not manifestly excessive. Therefore, the application for leave to appeal against the sentence was refused.

The final orders of the court were that the application for leave to appeal against sentence was dismissed.

Orders