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R v Tobin

R v Tobin

Case [2008] QCA 54 14 March 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tobin [2008] QCA 54

PARTIES:

R
v
TOBIN, Martin Francis Anthony
(applicant/appellant)

FILE NO/S:

CA No 319 of 2007
DC No 355 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

14 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2008

JUDGES:

Keane, Muir and Fraser JJA

ORDER:

1.     Application for leave to appeal against sentence allowed.

2.     Appeal against sentence allowed and orders below set aside.

3.     In their stead and subject to the applicant agreeing to the order being made after explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld), the applicant is sentenced to probation for six months on the conditions in s 93 of that Act, together with a special condition that the applicant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer.

4.     The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge of the District Court.

5.     The Court makes the recommendation that the applicant’s probation be transferred to New South Wales.

6.     That no conviction be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was convicted on his pleas of guilty to two counts of bomb threats – where the bomb threat was not taken seriously – where the applicant had significant mitigating factors – where the applicant was sentenced to six months imprisonment wholly suspended for two years – whether the sentence imposed in the circumstances was manifestly excessive

Criminal Code Act 1899 (Qld) s 321A(2)
Penalties and Sentences Act 1992 (Qld) s 9

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 010, discussed
R v Brown; ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, discussed
R v Cay, Gersch and Schell; ex parte A-G (Qld)
[2005] QCA 467, discussed
R v Gompelman[2002] QCA 191, discussed
R v Mills [2001] 2 Qd R 662; [2000] QCA 357, distinguished
R v Waugh[1999] QCA 045, distinguished

COUNSEL:

B Reilly for the applicant/appellant
M J Copley for the respondent

SOLICITORS:

Ryan and Bosscher Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

FRASER JA: The applicant was convicted on his pleas of guilty to two counts of bomb threats. For each offence a…

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 Tobin

Details

AGLC: R v Tobin [2008] QCA 54
Case: [2008] QCA 54
Decision Date: 14 March 2008

CaseChat Overview and Summary

In the case of R v Tobin, the appellant, Tobin, was convicted on his pleas of guilty to two counts of bomb threats. The Crown accepted that the bomb threats were not taken seriously, and the appellant had significant mitigating factors. The District Court sentenced the appellant to six months imprisonment, wholly suspended for two years. The appellant sought leave to appeal against the sentence, contending that it was manifestly excessive. The appeal was to the Queensland Court of Appeal.

The legal issues before the Court of Appeal were whether the sentence imposed by the District Court was manifestly excessive and, if so, what sentence should be imposed in its place. The Court had to consider the seriousness of the offence, the appellant's criminal history, and the mitigating factors presented. The Court was also required to decide whether the sentence was manifestly excessive and, if so, what sentence should replace it.

The Court of Appeal found that the sentence imposed by the District Court was manifestly excessive. The Court noted that the appellant had no criminal history, and the mitigating factors presented were significant. The Court held that the sentence imposed did not reflect the seriousness of the offence, and the appellant's prospects of rehabilitation. The Court allowed the appeal against sentence and set aside the orders of the District Court. The Court sentenced the appellant to probation for six months on the conditions in s 93 of the Penalties and Sentences Act 1992 (Qld), together with a special condition that the appellant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer. The Court recommended that the appellant's probation be transferred to New South Wales and that no conviction be recorded.

The Court of Appeal made orders allowing the appeal against sentence, setting aside the orders of the District Court, and sentencing the appellant to probation for six months on the conditions in s 93 of the Penalties and Sentences Act 1992 (Qld), together with a special condition that the appellant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer. The Court recommended that the appellant's probation be transferred to New South Wales and that no conviction be recorded.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed.

2. Appeal against sentence allowed and orders below set aside.

3. In their stead and subject to the applicant agreeing to the order being made after explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld), the applicant is sentenced to probation for six months on the conditions in s 93 of that Act, together with a special condition that the applicant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer.

4. The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge of the District Court.

5. The Court makes the recommendation that the applicant’s probation be transferred to New South Wales.

6. That no conviction be recorded.

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.

Citations

AGLC Citation

R v Tobin [2008] QCA 54

Most Recent Citation

R v Gambier [2009] QCA 138

Cases citing this decision · 2 of 2 shown

R v Oliver
[2018] QCA 348 Para 36

…n, that this offence did not involve the use of “violence” within the meaning of s 9(3) of the Penalties and Sentences Act 1992 (Qld).”[8] [7][2008] QCA 54. [8] Supra at [22].…
R v Gambier
[2009] QCA 138 Para 1

…t he was drug free, as particular mitigating factors. He also indicated that it was extremely unlikely that Mr Gambier would offend again. [4][2008] QCA 54.…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Cay, Gersch and Schell; ex parte
[2005] QCA 467 Para 1

…5; [1993] QCA 271, R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 at [40].…
R v Gompelman
[2002] QCA 191 Para 1

…The applicant also referred to R v Gompelman [2002] QCA 191, in which reference is made at pp 5-6 to a sentence imposed on one Millington, who was sentenced to six months imprisonment suspended for two years after he pleaded guilty to perpetrating a bomb hoax. Millington was obsessed with scaring the complainant…
R v Mills
[2000] QCA 357 Para 1

…, general deterrence is a paramount consideration in sentencing for offences of this kind: see R v Waugh [1999] QCA 045; R v Mills [2001] 2 Qd R 662; [2000] QCA 357. It does not necessarily follow, however, that imprisonment must be imposed for such offences in all cases.…
R v Breeze
[1999] QCA 303 Para 1

…cumstances at least, comprehend threats to do violence: see R v Lovell [1998] QCA 036; R v Steven Albert Barling [1999] QCA 016; R v Breeze [1999] QCA 303. Here, however, the applicant’s threats were so expressed that they did not induce any belief that there was a bomb. It was accepted that there was no apprehen…
Lewiac Pty Ltd v Gold Coast City Council
[1993] QCA 462 Para 1

…ve” imprisonment in terms of s 156 is a different question: R v Anderson [1995] 1 Qd R 49, per McPherson JA at 53 and per Mackenzie J at 54-55; [1993] QCA 462. An order for suspension of a term of imprisonment presupposes that a sentence of imprisonment has been imposed: see s 144(1).…
R v Fullalove
[1993] QCA 276 Para 1

…significance it otherwise might: cf R v Condoleon (1993) 69 A Crim R 573 at 576; [1993] QCA 272, R v Fullalove (1993) 68 A Crim R 486 at 492-493; [1993] QCA 276, R v Cay, Gersch and Schell at [43]; see also at [74]-[75].…
R v Brown; ex parte Attorney-General
[1993] QCA 271 Para 1

…particular circumstances might lead to one or other in fact having greater weight: R v Brown; ex parte Attorney-General [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 at [40].…
R v Condoleon
[1993] QCA 272 Para 1

…any threatened specific employment opportunity does not have the significance it otherwise might: cf R v Condoleon (1993) 69 A Crim R 573 at 576; [1993] QCA 272, R v Fullalove (1993) 68 A Crim R 486 at 492-493; [1993] QCA 276, R v Cay, Gersch and Schell at [43]; see also at [74]-[75].…
House v R
[1936] HCA 40

…55 CLR 499 at 504-505; [1936] HCA 40 .…
[1997] QCA 010
[1997] QCA 010 Para 1

…t: R v Brown; ex parte Attorney-General [1994] 2 Qd R 182 at 185; [1993] QCA 271, R v Briese; ex parte Attorney-General [1998] 1 Qd R 487 at 493; [1997] QCA 010, R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467 at [40].…
R v Lovell
[1998] QCA 036 Para 1

…s here no physical harm. The reference to “violence” may, in some circumstances at least, comprehend threats to do violence: see R v Lovell [1998] QCA 036; R v Steven Albert Barling [1999] QCA 016; R v Breeze [1999] QCA 303. Here, however, the applicant’s threats were so expressed that they did not induce any bel…
R v Barling
[1999] QCA 016 Para 1

…“violence” may, in some circumstances at least, comprehend threats to do violence: see R v Lovell [1998] QCA 036; R v Steven Albert Barling [1999] QCA 016; R v Breeze [1999] QCA 303. Here, however, the applicant’s threats were so expressed that they did not induce any belief that there was a bomb. It was accepted…
[1999] QCA 045
[1999] QCA 045 Para 1

…As the sentencing judge observed, general deterrence is a paramount consideration in sentencing for offences of this kind: see R v Waugh [1999] QCA 045; R v Mills [2001] 2 Qd R 662; [2000] QCA 357. It does not necessarily follow, however, that imprisonment must be imposed for such offences in all cases.…
House v The King
63 WN 176 Para 1

…s manifestly excessive, in the sense that it is so "unreasonable or plainly unjust" as to give rise to an inference that the discretion miscarried: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 .…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9 2 mentions (from Para 1)
Criminal Code Act 1899 (Qld)
321A(2) 1 mention (from Para 1)

CITATION:	R v Tobin [2008] QCA 54
PARTIES:	R v TOBIN, Martin Francis Anthony (applicant/appellant)
FILE NO/S:	CA No 319 of 2007 DC No 355 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	14 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2008
JUDGES:	Keane, Muir and Fraser JJA
ORDER:	1. Application for leave to appeal against sentence allowed. 2. Appeal against sentence allowed and orders below set aside. 3. In their stead and subject to the applicant agreeing to the order being made after explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld), the applicant is sentenced to probation for six months on the conditions in s 93 of that Act, together with a special condition that the applicant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer. 4. The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge of the District Court. 5. The Court makes the recommendation that the applicant’s probation be transferred to New South Wales. 6. That no conviction be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was convicted on his pleas of guilty to two counts of bomb threats – where the bomb threat was not taken seriously – where the applicant had significant mitigating factors – where the applicant was sentenced to six months imprisonment wholly suspended for two years – whether the sentence imposed in the circumstances was manifestly excessive Criminal Code Act 1899 (Qld) s 321A(2) Penalties and Sentences Act 1992 (Qld) s 9 House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Briese; ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 010, discussed R v Brown; ex parte Attorney-General [1994] 2 Qd R 182; [1993] QCA 271, discussed R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, discussed R v Gompelman[2002] QCA 191, discussed R v Mills [2001] 2 Qd R 662; [2000] QCA 357, distinguished R v Waugh[1999] QCA 045, distinguished
COUNSEL:	B Reilly for the applicant/appellant M J Copley for the respondent
SOLICITORS:	Ryan and Bosscher Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent