R v Walsh

[2014] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walsh [2014] QCA 209

PARTIES:

R
v
WALSH, Aubrey Richard
(applicant)

FILE NO/S:

CA No 56 of 2014
DC No 76 of 2014
DC No 88 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2014

JUDGES:

Holmes and Fraser JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, Holmes JA and Ann Lyons J concurring as to the orders made, Fraser JA dissenting

ORDERS:

1.    Application for leave to appeal against sentence granted.

2.    Appeal allowed.

3.    Set aside the sentences imposed below in respect of the following counts and in lieu thereof order:

a.    In respect of Counts 1, 3, 6, 8, 10, 14, 16, 19, 21, 24, 29, 31, 33, 36, 39 and 41 impose a sentence of two years imprisonment.

b.    In respect of Counts 2, 4, 7, 9, 12, 13, 15, 17, 20, 22, 25, 27, 28, 30, 32, 34, 35, 37, 40 and 42 impose a sentence of 18 months imprisonment.

4.  Otherwise, confirm the orders made.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was granted leave to appeal his sentence on the basis that the learned sentencing judge misapplied s 156A of the Penalties and Sentences Act 1992 (Qld) – where the applicant was sentenced to three years imprisonment for stealing and burglary offences to be served cumulatively upon a sentence previously imposed for similar offending – whether the sentence is manifestly excessive – whether the learned sentencing judge gave sufficient consideration to the considerable disclosures made by the applicant and the unlikelihood that the applicant would be granted parole

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

R v Anderson[2004] QCA 74, considered
R v Gee[1998] QCA 321, considered
R v Hazelgrove[2013] QCA 243, considered
R v Paton[2011] QCA 34, considered

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

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

1. HOLMES JA: I agree with A Lyons J that the sentencing judge’s error (the result of counsel’s submissions) as to the supposed need to apply s 156A(2)(b) of the Penalties and Sentences Act affected the exercise of the sentencing discretion.  It means that his Honour was sentencing on the basis that the legislature ascribed to the offences a greater gravity than was in fact the case.

1. A head sentence of imprisonment of two years is appropriate, having regard to the fact that it is to be served cumulatively and taking into account the applicant’s personal circumstances; more particularly, his significant co-operation in identifying the offences he had committed.  In other circumstances, the mitigating factors might have led to the setting of parole eligibility at something…