R v. Unsworth - [2007] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v Unsworth [2007] QCA 289

PARTIES:

R
v
UNSWORTH, Wayne Charles
(applicant)

FILE NO/S:

CA No 113 of 2007
DC No 377 of 2007
DC No 928 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2007

JUDGES:

McMurdo P, Mackenzie J and Atkinson J
Joint reasons for judgment of McMurdo P and Atkinson J; separate reasons of Mackenzie J dissenting

ORDER:

1.Application for leave to appeal granted

2.Appeal allowed to the extent of:

a)Setting aside the order activating the whole of the two year suspended sentence

b)Ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated

c)Setting aside the parole release date of 4 June 2008

d)Ordering that his parole release date be 4 December 2007

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 applicant pleaded guilty to dangerous operation of a motor vehicle with a circumstance of aggravation committed during the operational period of a suspended sentence – where the applicant was ordered under s 147(2) Penalties and Sentences Act 1992 (Qld) to serve the whole suspended period of imprisonment of 2 years and 12 months imprisonment cumulative for the dangerous operation of a motor vehicle with a parole release date after 14 months – whether it was unjust under s 147 Penalties and Sentences Act 1992 (Qld) to serve the entire suspended period of imprisonment because of rehabilitation and new family responsibilities – whether the total sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147(1), s 147(2), s 147(3)

R v Muller[2005] QCA 417; CA No 267 of 2005, 11 November 2005, distinguished

COUNSEL:

A J Kimmins for the appellant
M J Copley for the respondent

SOLICITORS:

Douglas Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

ATKINSON J:McMURDO P and The applicant seeks leave to appeal a sentence of imprisonment imposed by the District Court which was effectively three years imprisonment with a parole release date after he had served 14 months of imprisonment.

He was sentenced when he pleaded guilty in court on 4 April 2007 on one count of dangerous operation of a motor vehicle with a circumstance of aggravation. That offence occurred almost nine years earlier on 2 July 1998. Because of the circumstance of aggravation, the maximum penalty for that offence was five years imprisonment although the learned sentencing judge worked on the erroneous submission by the prosecutor that the maximum penalty was three years.

The applicant’s conviction for that offence meant that he was in breach of a sentence of two years imprisonment which had been imposed by another judge in the District Court on 17 September 1997 and wholly suspended with…

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. Unsworth

Details

AGLC: R v Unsworth [2007] QCA 289
Case: [2007] QCA 289
Decision Date: 7 September 2007

CaseChat Overview and Summary

The appeal in R v. Unsworth involved the appellant who had pleaded guilty to dangerous operation of a motor vehicle, with an aggravating circumstance, while under the operational period of a suspended sentence. The court was tasked with reviewing the sentence imposed on the appellant, specifically the decision to activate the entire suspended sentence and the parole release date. The appellant contended that it was unjust under the Penalties and Sentences Act 1992 (Qld) to serve the entire suspended period of imprisonment due to his rehabilitation and new family responsibilities. Additionally, he argued that the total sentence imposed was manifestly excessive.

The central legal issue before the court was whether the decision to enforce the entire suspended sentence was unjust under section 147 of the Penalties and Sentences Act 1992 (Qld), and if the overall sentence was manifestly excessive. The court considered the appellant's rehabilitation progress and new family commitments as mitigating factors. The court had to balance these factors against the need for punishment and deterrence in light of the appellant's prior conduct and the seriousness of the current offence.

The court found that the appellant's rehabilitation and new family responsibilities constituted significant mitigating factors that warranted a reconsideration of the sentence. The court deemed it unjust to enforce the entire suspended sentence without proper consideration of these factors. Furthermore, the court accepted that the total sentence was manifestly excessive, taking into account the appellant's rehabilitation and the need for a proportionate punishment. As a result, the court allowed the appeal, setting aside the order that activated the whole of the two-year suspended sentence and ordering that only 12 months of the suspended sentence be activated. Additionally, the parole release date was adjusted to 4 December 2007.

Orders

Orders of the court

1.Application for leave to appeal granted

2.Appeal allowed to the extent of:

a)Setting aside the order activating the whole of the two year suspended sentence

b)Ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated

c)Setting aside the parole release date of 4 June 2008

d)Ordering that his parole release date be 4 December 2007

Background

Background to the litigation

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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 Unsworth [2007] QCA 289
PARTIES:	R v UNSWORTH, Wayne Charles (applicant)
FILE NO/S:	CA No 113 of 2007 DC No 377 of 2007 DC No 928 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2007
JUDGES:	McMurdo P, Mackenzie J and Atkinson J Joint reasons for judgment of McMurdo P and Atkinson J; separate reasons of Mackenzie J dissenting
ORDER:	1.Application for leave to appeal granted 2.Appeal allowed to the extent of: a)Setting aside the order activating the whole of the two year suspended sentence b)Ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated c)Setting aside the parole release date of 4 June 2008 d)Ordering that his parole release date be 4 December 2007
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 applicant pleaded guilty to dangerous operation of a motor vehicle with a circumstance of aggravation committed during the operational period of a suspended sentence – where the applicant was ordered under s 147(2) Penalties and Sentences Act 1992 (Qld) to serve the whole suspended period of imprisonment of 2 years and 12 months imprisonment cumulative for the dangerous operation of a motor vehicle with a parole release date after 14 months – whether it was unjust under s 147 Penalties and Sentences Act 1992 (Qld) to serve the entire suspended period of imprisonment because of rehabilitation and new family responsibilities – whether the total sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147(1), s 147(2), s 147(3) R v Muller[2005] QCA 417; CA No 267 of 2005, 11 November 2005, distinguished
COUNSEL:	A J Kimmins for the appellant M J Copley for the respondent
SOLICITORS:	Douglas Law for the appellant Director of Public Prosecutions (Queensland) for the respondent