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 2014DIVISION:
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 dissentingORDERS:
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, consideredCOUNSEL:
The applicant appeared on his own behalf
B J Power for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
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.
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…
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- AGLC
- R v Walsh [2014] QCA 209
- Case
- [2014] QCA 209
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing judge's application of section 156A, which provides for the cumulative sentencing of multiple offences. The court found that the sentencing judge had not adequately considered the substantial disclosures made by the applicant, which included significant cooperation with authorities and remorse. The court also noted that the sentencing judge did not sufficiently assess the likelihood of parole, which would have impacted the overall sentence. Given these errors, the court concluded that the sentence was manifestly excessive and that the sentencing judge had not given sufficient weight to the mitigating factors presented.
In light of the findings, the court allowed the appeal and set aside the sentences imposed below. The court ordered that, in respect of certain counts, a sentence of two years imprisonment should be imposed, and for other counts, a sentence of 18 months imprisonment should be imposed. The court confirmed all other orders made in the case. The court's decision underscores the importance of thoroughly considering all mitigating factors and the likelihood of parole when determining a sentence under section 156A.
Orders
Orders of the court
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.
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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