R v Walker - [2008] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walker [2008] QCA 166

PARTIES:

R
v
WALKER, Joshua Adam
(applicant/appellant)

FILE NO/S:

CA No 38 of 2008
DC No 546 of 2007
DC No 547 of 2007
DC No 548 of 2007
DC No 605 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2008

JUDGES:

McMurdo P, Keane JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal against sentence granted.1.

Appeal allowed to the extent of setting aside the sentence imposed on count 2 of Indictment 7968 of 2007 (8) and count 2 of Indictment 7969 of 2007 (4) and instead ordering on each of those counts that the applicant be sentenced to three years imprisonment with a parole release date fixed at 8 August 2008.2.

Declare 372 days from 23 January 2007 to 17 October 2007 and 26 October 2007 to 8 February 2008 as time already served under the sentence3.   .

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – applicant pleaded guilty to two counts of unlawfully using a motor vehicle, two counts of burglary and stealing and one count each of fraud, breaking and entering and stealing and dangerous operation of a motor vehicle causing grievous bodily harm – applicant had served 372 days of pre-sentence custody on remand – judge sentenced the applicant to four years imprisonment for each of the two burglary and stealing charges and lesser concurrent terms of imprisonment for the other offences – judge set parole eligibility date at six months after sentence – judge should have been informed that the applicant has been unable on remand, and would be unable in the six months before the given parole eligibility date, to complete appropriate programs to obtain parole – whether the judge proceeded on a material factual error – whether the judge should have structured the sentence to fix a parole release date as opposed to a parole eligibility date – whether the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 328A(4), s 419(4)
Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(4), s 160B, s 160C

COUNSEL:

The applicant appeared on his own behalf
T A Fuller for the respondent

SOLICITORS:

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

McMURDO P: The applicant, Joshua Adam Walker, pleaded guilty on 8 February 2008 to a number of charges contained in three indictments. The offences to which he pleaded guilty on the first indictment were unlawfully using a motor vehicle between 27 December 2006 and 5 January 2007, burglary and stealing on 29 December 2006, and fraud, also committed on that date. The second indictment…

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 Walker

Details

AGLC: R v Walker [2008] QCA 166
Case: [2008] QCA 166
Decision Date: 20 June 2008

CaseChat Overview and Summary

The applicant, Walker, appealed against the sentence imposed by the Supreme Court of Queensland. Walker pleaded guilty to multiple charges including unlawful use of a motor vehicle, burglary, stealing, fraud, breaking and entering, and dangerous operation of a motor vehicle causing grievous bodily harm. The trial judge sentenced Walker to four years imprisonment for each of the two burglary and stealing charges and lesser concurrent terms for the other offences. The judge set a parole eligibility date six months after the sentence. The appeal focused on whether the trial judge should have been informed about Walker's inability to complete programs necessary for parole eligibility, whether the judge made a material factual error, and whether the sentence was manifestly excessive.

The court examined whether the trial judge erred in not being informed about Walker's inability to complete parole programs and whether this influenced the sentencing decision. The court considered whether the sentence should have fixed a parole release date instead of a parole eligibility date. Additionally, the court assessed if the sentence was manifestly excessive considering the totality of the charges and Walker's pre-sentence custody.

The court concluded that the trial judge should have been informed about Walker's inability to complete parole programs, which constituted a material factual error. The court found that the judge should have structured the sentence to fix a parole release date rather than a parole eligibility date. Furthermore, the court held that the sentence was manifestly excessive, warranting a reduction. Consequently, the court granted leave to appeal, set aside the original sentence on two counts, and ordered a new sentence with a fixed parole release date, declaring the pre-sentence custody time already served under the new sentence.

Orders

Orders of the court

Application for leave to appeal against sentence granted.1.

Appeal allowed to the extent of setting aside the sentence imposed on count 2 of Indictment 7968 of 2007 (8) and count 2 of Indictment 7969 of 2007 (4) and instead ordering on each of those counts that the applicant be sentenced to three years imprisonment with a parole release date fixed at 8 August 2008.2.

Declare 372 days from 23 January 2007 to 17 October 2007 and 26 October 2007 to 8 February 2008 as time already served under the sentence3. .

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 Walker [2008] QCA 166
PARTIES:	R v WALKER, Joshua Adam (applicant/appellant)
FILE NO/S:	CA No 38 of 2008 DC No 546 of 2007 DC No 547 of 2007 DC No 548 of 2007 DC No 605 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	20 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	11 June 2008
JUDGES:	McMurdo P, Keane JA and Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence granted.1. Appeal allowed to the extent of setting aside the sentence imposed on count 2 of Indictment 7968 of 2007 (8) and count 2 of Indictment 7969 of 2007 (4) and instead ordering on each of those counts that the applicant be sentenced to three years imprisonment with a parole release date fixed at 8 August 2008.2. Declare 372 days from 23 January 2007 to 17 October 2007 and 26 October 2007 to 8 February 2008 as time already served under the sentence3. .
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – applicant pleaded guilty to two counts of unlawfully using a motor vehicle, two counts of burglary and stealing and one count each of fraud, breaking and entering and stealing and dangerous operation of a motor vehicle causing grievous bodily harm – applicant had served 372 days of pre-sentence custody on remand – judge sentenced the applicant to four years imprisonment for each of the two burglary and stealing charges and lesser concurrent terms of imprisonment for the other offences – judge set parole eligibility date at six months after sentence – judge should have been informed that the applicant has been unable on remand, and would be unable in the six months before the given parole eligibility date, to complete appropriate programs to obtain parole – whether the judge proceeded on a material factual error – whether the judge should have structured the sentence to fix a parole release date as opposed to a parole eligibility date – whether the sentence was manifestly excessive Criminal Code 1899 (Qld), s 328A(4), s 419(4) Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(4), s 160B, s 160C
COUNSEL:	The applicant appeared on his own behalf T A Fuller for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent