R v Van Wensveen - [2014] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

R v Van Wensveen [2014] QCA 225

PARTIES:

R
v
VAN WENSVEEN, Stanley Floyd
(applicant)

FILE NO/S:

CA No 63 of 2014
DC No 364 of 2013
DC No 78 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

9 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2014

JUDGES:

Margaret McMurdo P, Fraser JA and Alan Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal against sentence and allow the appeal.

2.   Vary the sentences imposed in the District Court as follows:

(a)     in relation to counts 1 and 2 on the indictment, omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014.

In relation to the summary offence of possessing dangerous drugs:(b)

Omit the order that the sentence of imprisonment for a period of one month is to be served cumulatively upon the sentences imposed for Counts 1 and 2 of the indictment, and in lieu thereof order that the sentence is to be served concurrently with the other sentences; and                   (i)

Omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014.                  (ii)

Otherwise confirm the sentence imposed upon the applicant in the District Court.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of producing a dangerous drug in excess of 500 grams, one count of possessing a thing for use in connection with producing a dangerous drug, and one summary charge of possessing dangerous drugs – where the applicant was sentenced to a head sentence of three years imprisonment for the indictable offences, and one month imprisonment for the summary charge, to be served cumulatively – where the applicant committed the summary offence on 16 September 2012 – where the primary judge, in ordering the imprisonment be served concurrently, acted on the basis it was committed on 16 September 2013 – whether the primary judge erred – whether, in re-exercising the sentencing discretion, the sentences should be ordered to be served concurrently

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where this court proposes to sentence the offender to three years imprisonment, with a parole release date after serving about 12 months – where the applicant’s co-offender pleaded guilty to the same two indictable offences and also to a third count of unlawful possession of a dangerous drug – where the co-offender received a head sentence of three years imprisonment suspended after four months – where the co-offender had terminal cancer…

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 Van Wensveen

Details

AGLC: R v Van Wensveen [2014] QCA 225
Case: [2014] QCA 225
Decision Date: 9 September 2014

CaseChat Overview and Summary

In this appeal, the applicant, Van Wensveen, challenged the sentences imposed upon him by the District Court, specifically contesting the manner in which his sentences were to be served and the perceived disparity with his co-offender's sentence. Van Wensveen pleaded guilty to producing a dangerous drug in excess of 500 grams, possessing a thing for use in connection with producing a dangerous drug, and possessing dangerous drugs. He was sentenced to three years imprisonment for the indictable offences and one month imprisonment for the summary charge, to be served cumulatively. However, the primary judge ordered the sentences to be served concurrently, mistakenly believing the summary offence occurred in 2013 rather than 2012. Additionally, Van Wensveen argued that the sentencing disparity with his co-offender, who received a suspended sentence due to terminal cancer, was unjust.

The court needed to determine if the primary judge erred in ordering the sentences to be served concurrently and if there was a manifest discrepancy between the sentences of Van Wensveen and his co-offender that could engender a justifiable sense of grievance. The court considered whether the primary judge's error was material and if the disparity between the sentences was so significant as to warrant interference. The court also had to re-exercise the sentencing discretion in light of the errors identified. The reasoning involved a detailed examination of the principles of sentencing, the nature of the offences, and the impact of the primary judge's error on the overall sentence.

The Court of Appeal granted the application for leave to appeal against the sentence and allowed the appeal. It found that the primary judge had indeed erred in ordering the sentences to be served concurrently due to the mistaken date of the summary offence. The Court varied the sentences, ordering that the sentence for the summary offence be served concurrently with the other sentences and setting new parole release dates. The Court also addressed the issue of parity between co-offenders, concluding that the disparity was not so significant as to engender a justifiable sense of grievance, but it did adjust the parole release date to achieve a measure of parity. The Court confirmed the remainder of the sentence imposed by the District Court.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence and allow the appeal.

2. Vary the sentences imposed in the District Court as follows:

(a) in relation to counts 1 and 2 on the indictment, omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014.

In relation to the summary offence of possessing dangerous drugs:(b)

Omit the order that the sentence of imprisonment for a period of one month is to be served cumulatively upon the sentences imposed for Counts 1 and 2 of the indictment, and in lieu thereof order that the sentence is to be served concurrently with the other sentences; and (i)

Omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014. (ii)

Otherwise confirm the sentence imposed upon the applicant in the District Court.3.

Background

Background to the litigation

Full text does not contain this section.

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 Van Wensveen [2014] QCA 225
PARTIES:	R v VAN WENSVEEN, Stanley Floyd (applicant)
FILE NO/S:	CA No 63 of 2014 DC No 364 of 2013 DC No 78 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	9 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2014
JUDGES:	Margaret McMurdo P, Fraser JA and Alan Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal against sentence and allow the appeal. 2. Vary the sentences imposed in the District Court as follows: (a) in relation to counts 1 and 2 on the indictment, omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014. In relation to the summary offence of possessing dangerous drugs:(b) Omit the order that the sentence of imprisonment for a period of one month is to be served cumulatively upon the sentences imposed for Counts 1 and 2 of the indictment, and in lieu thereof order that the sentence is to be served concurrently with the other sentences; and (i) Omit the order that the date the offender is eligible for parole be fixed at 10 January 2015, and in lieu thereof fix a parole release date of 18 December 2014. (ii) Otherwise confirm the sentence imposed upon the applicant in the District Court.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of producing a dangerous drug in excess of 500 grams, one count of possessing a thing for use in connection with producing a dangerous drug, and one summary charge of possessing dangerous drugs – where the applicant was sentenced to a head sentence of three years imprisonment for the indictable offences, and one month imprisonment for the summary charge, to be served cumulatively – where the applicant committed the summary offence on 16 September 2012 – where the primary judge, in ordering the imprisonment be served concurrently, acted on the basis it was committed on 16 September 2013 – whether the primary judge erred – whether, in re-exercising the sentencing discretion, the sentences should be ordered to be served concurrently CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where this court proposes to sentence the offender to three years imprisonment, with a parole release date after serving about 12 months – where the applicant’s co-offender pleaded guilty to the same two indictable offences and also to a third count of unlawful possession of a dangerous drug – where the co-offender received a head sentence of three years imprisonment suspended after four months – where the co-offender had terminal cancer…