R v Toms - [2004] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION:

R v Toms [2004] QCA 406

PARTIES:

R
v
TOMS, Darrin Mark

(applicant/appellant)

FILE NO:

CA No 259 of 2004
DC No 1519 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGES:

Williams JA, Jones and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal granted
2. Appeal allowed only to the extent of adding a
     recommendation that the applicant be considered for
     a post-prison community based release order on 9
     January 2009

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF THE OFFENDER – where the applicant was convicted of three armed robberies – where, at the time of committing these offences, the applicant was on parole – where the applicant was sentenced on each to seven years’ imprisonment to be served concurrently with each other and cumulatively with the earlier sentences – where the applicant alleged that the learned sentencing judge had, in sentencing the applicant, taken into account an offence which had been incorrectly recorded on the applicant’s criminal history – where the applicant alleged that his further offending was as a consequence of the Community Corrections Board decision to remove the applicant from a rehabilitation facility and place him in a release to work program – whether, in the circumstances, the sentence was manifestly excessive

Corrective ServicesAct 2000 (Qld), s 151

Penalties and Sentences Act 1992 (Qld), s 156A(2)

R v McCormick [1999] QCA 354; CA No 205 of 1999, 27 August 1999, cited

COUNSEL:

The appellant appeared on his own behalf
Mr M R Byrne for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Chesterman J and I agree with all that he has said therein and with the orders he has proposed.

JONES J: I agree with the reasons expressed by Chesterman J and with the orders he proposes.

CHESTERMAN J:
On 26 February 1988 the applicant was convicted of manslaughter and sentenced to 14 years’ imprisonment. He was released on parole on 24 February 1995, having served half the sentence. Between

6 March 1995 and 13 May 1995 the applicant committed a number of criminal offences to which he later pleaded guilty. They were:

·Possessing an instrument with intent to commit an indictable offence
·Stealing
·Unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence
·Attempted armed robbery
·Five counts of breaking and entering with intent
·Arson
·Wilfully damaging property
·Three counts of breaking, entering and stealing
·Three counts of attempted arson
·Two counts of attempted breaking and entering with intent.

For these offences the applicant was sentenced to…

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 Toms

Details

AGLC: R v Toms [2004] QCA 406
Case: [2004] QCA 406
Decision Date: 29 October 2004

CaseChat Overview and Summary

The case of R v Toms involved an appellant who was convicted of three armed robberies. The appellant had committed these offences while on parole. The primary issue in this case was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the trial judge had taken into account an offence that had been incorrectly recorded on the appellant’s criminal history. Furthermore, the appellant contended that his reoffending was a consequence of the Community Corrections Board's decision to remove him from a rehabilitation facility and place him in a release to work program. The court was required to assess whether the sentence was appropriate in light of these arguments.

The court considered the arguments presented by the appellant and examined the sentencing principles that applied in this case. The court noted that the trial judge had taken into account the appellant's criminal history, which included the incorrectly recorded offence. However, the court found that the trial judge had not erred in this regard, as the appellant's criminal history was a relevant factor in determining the appropriate sentence. The court also considered the appellant's argument that his reoffending was a consequence of the Community Corrections Board's decision. However, the court found that this argument did not undermine the overall sentence imposed by the trial judge.

The court concluded that the sentence imposed by the trial judge was not manifestly excessive. However, the court did recommend that the appellant be considered for a post-prison community based release order on 9 January 2009. The court granted leave to appeal and allowed the appeal only to the extent of adding this recommendation. The court's decision highlights the importance of considering all relevant factors in determining an appropriate sentence, while also taking into account the appellant's criminal history and any mitigating circumstances that may be present.

Orders

Orders of the court

1. Leave to appeal granted

2. Appeal allowed only to the extent of adding a

recommendation that the applicant be considered for

a post-prison community based release order on 9

January 2009

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 Toms [2004] QCA 406
PARTIES:	R v TOMS, Darrin Mark (applicant/appellant)
FILE NO:	CA No 259 of 2004 DC No 1519 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2004
JUDGES:	Williams JA, Jones and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal granted 2. Appeal allowed only to the extent of adding a recommendation that the applicant be considered for a post-prison community based release order on 9 January 2009
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF THE OFFENDER – where the applicant was convicted of three armed robberies – where, at the time of committing these offences, the applicant was on parole – where the applicant was sentenced on each to seven years’ imprisonment to be served concurrently with each other and cumulatively with the earlier sentences – where the applicant alleged that the learned sentencing judge had, in sentencing the applicant, taken into account an offence which had been incorrectly recorded on the applicant’s criminal history – where the applicant alleged that his further offending was as a consequence of the Community Corrections Board decision to remove the applicant from a rehabilitation facility and place him in a release to work program – whether, in the circumstances, the sentence was manifestly excessive Corrective ServicesAct 2000 (Qld), s 151 Penalties and Sentences Act 1992 (Qld), s 156A(2) R v McCormick [1999] QCA 354; CA No 205 of 1999, 27 August 1999, cited
COUNSEL:	The appellant appeared on his own behalf Mr M R Byrne for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent