R v Warne - [2015] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Warne [2015] QCA 9

PARTIES:

R
v
WARNE, Nathan Daniel
(applicant)

FILE NO:

CA No 117 of 2014
SC No 716 of 2013
SC No 51 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2014

JUDGES:

Gotterson and Morrison JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE WAS MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts on the indictment and two summary offences – where the indictable offences were burglary by breaking whilst armed, and in company, and causing grievous bodily harm with intent to do grievous bodily harm – where the applicant was sentenced to seven years imprisonment for each of the indictable offences – where the application for leave is based upon the sentence being manifestly excessive for three reasons: too much weight was placed on the fact a gun was used; there was insufficient recognition of the limited nature of the injury; and that the comparable cases supported a lower range of sentence

R v Granato[2006] QCA 25, considered
R v Laing [2008] QCA 317, considered
R v Marks; ex parte Attorney-General of Queensland [2002] QCA 34, considered
R v W [2004] QCA 124, considered

COUNSEL:

C F C Wilson for the applicant
D A Holliday for the respondent

SOLICITORS:

Peter Shields Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

MORRISON JA: The applicant seeks leave to appeal in respect of sentences imposed upon him on 9 May 2014, on his plea of guilty, on two counts on an indictment and two summary offences. The offences, and the sentences imposed are as follows:-

(a)count 1 – burglary by breaking, whilst armed, and in company; seven years imprisonment;
(b)count 2 – causing grievous bodily harm with intent to do grievous bodily harm; seven years imprisonment;
(c)unlawful use of a motor vehicle between 20 March 2012 and 23 March 2012; six months imprisonment;
(d)unlawful use of a motor vehicle on 21 March 2012; six months imprisonment; and
(e)parole eligibility date set at 9 June 2015; set to reflect one-third of the seven year term, taking into account 316 days of pre-sentence custody[1] declared as time served, and allowing a further reduction of five months out of an additional 10 months served but which was not declarable or declared.
[1]Between 27 June 2013 and 8 May 2014.

Both of the indictable offences occurred on 29 August 2012 in circumstances to which I will come shortly. Not surprisingly those two counts were the focus of the…

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 Warne

Details

AGLC: R v Warne [2015] QCA 9
Case: [2015] QCA 9
Decision Date: 13 February 2015

CaseChat Overview and Summary

The case of R v Warne involves an appeal against the sentencing of the applicant, who pleaded guilty to two counts of burglary by breaking while armed, and causing grievous bodily harm with intent, along with two summary offences. The applicant was sentenced to seven years imprisonment for each of the indictable offences. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, particularly given the arguments that too much weight was placed on the use of a gun, the limited nature of the injury caused, and the fact that comparable cases suggested a lower range of sentence.

The court examined the arguments presented, considering whether the sentence imposed by the sentencing judge represented a misapplication of judicial discretion. The applicant argued that the use of a gun was overemphasised, the injury caused was not severe enough to warrant such a lengthy sentence, and that the sentencing range in similar cases was lower. However, the court found that the sentencing judge had appropriately considered all relevant factors, including the seriousness of the offences, the use of a weapon, and the potential harm that could have been caused. The court concluded that the sentence was within the appropriate range and did not constitute a manifestly excessive punishment.

The reasoning of the court was that while the use of a weapon and the potential for causing significant harm were serious aggravating factors, the sentence imposed was not disproportionate to the crimes committed. The court gave due consideration to the arguments presented but ultimately upheld the sentence, finding that the sentencing judge's discretion was correctly exercised. The application for leave to appeal against the sentence was therefore refused. The court's decision and order were concurred with by McMEEKIN J.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view it has not been demonstrated that the learned sentencing judge’s exercise of sentencing discretion miscarried on this ground.Conclusion For the reasons expressed above I do not consider it has been demonstrated that the sentence imposed was manifestly excessive. The application is refused. McMEEKIN J: I have read the reasons of Morrison JA. I agree with those reasons and the order proposed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Warne [2015] QCA 9
PARTIES:	R v WARNE, Nathan Daniel (applicant)
FILE NO:	CA No 117 of 2014 SC No 716 of 2013 SC No 51 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2014
JUDGES:	Gotterson and Morrison JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE WAS MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts on the indictment and two summary offences – where the indictable offences were burglary by breaking whilst armed, and in company, and causing grievous bodily harm with intent to do grievous bodily harm – where the applicant was sentenced to seven years imprisonment for each of the indictable offences – where the application for leave is based upon the sentence being manifestly excessive for three reasons: too much weight was placed on the fact a gun was used; there was insufficient recognition of the limited nature of the injury; and that the comparable cases supported a lower range of sentence R v Granato[2006] QCA 25, considered R v Laing [2008] QCA 317, considered R v Marks; ex parte Attorney-General of Queensland [2002] QCA 34, considered R v W [2004] QCA 124, considered
COUNSEL:	C F C Wilson for the applicant D A Holliday for the respondent
SOLICITORS:	Peter Shields Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent