R v Watson - [2009] QCA 243

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watson [2009] QCA 243

PARTIES:

R
v
WATSON, Gavin Cedric
(applicant)

FILE NO/S:

CA No 83 of 2009
DC No 62 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

28 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence is granted

2.   Appeal allowed

3.   Set aside the sentence imposed on each of counts 6 to 10, 12 and 14 to 19 and substitute a sentence of three years’ imprisonment and otherwise confirm the sentences imposed on the other counts

4.   Set aside the parole eligibility date imposed of 1 August 2011 and substitute 29 September 2010 as the date on which the defendant is eligible for parole

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – appeal by convicted persons – applications to reduce sentence – when granted – particular offences – property offences – where applicant pleaded guilty to 18 counts in respect of offences of stealing, burglary by breaking, unlawfully using a motor vehicle, burglary and attempted burglary – where applicant sentenced to four years’ imprisonment for each of the burglary and stealing, burglary by breaking and burglary offences – where at time of sentencing applicant had served two years one month of a current three year sentence for similar offending – where all sentences were concurrent with each other and existing sentences – where parole eligibility date fixed 18 months after the expiration of the existing sentences – where submissions before sentencing judge were not specifically directed at the practical effect of the sentence being imposed – where sentence imposed had a largely cumulative effect – where small sums of money involved and applicant’s offending of an opportunistic nature – whether sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 184(2)
Penalties and Sentences Act 1992 (Qld), s 160C(2), s 160C(3), s 160C(5)

R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, considered

COUNSEL:

C L Morgan for the applicant
P F Rutledge for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

: HOLMES JAI agree with the reasons of Mullins J and with the orders her Honour proposes.

MULLINS J: The applicant pleaded guilty to and was sentenced in the District Court on 30 March 2009 for nine counts of burglary and stealing, two counts of unlawfully entering a vehicle with intent to commit an indictable offence, one count of stealing, one count of burglary by breaking, one count of unlawfully using a motor vehicle, four counts of burglary and one count of attempted burglary. The charges were on an ex officio indictment. Counts 1 to 5 were…

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 Watson

Details

AGLC: R v Watson [2009] QCA 243
Case: [2009] QCA 243
Decision Date: 28 August 2009

CaseChat Overview and Summary

The case of R v Watson involved an appeal against the sentence imposed on the applicant following his conviction on 18 counts related to various property offences. The applicant had pleaded guilty to charges including stealing, burglary by breaking, unlawfully using a motor vehicle, burglary, and attempted burglary. The sentencing judge imposed a concurrent sentence of four years' imprisonment for each of the burglary and stealing, burglary by breaking, and burglary offences, with the sentences running concurrently with an existing three-year sentence the applicant was serving at the time. The parole eligibility date was set 18 months after the expiration of the existing sentences. The applicant sought leave to appeal against the sentence, arguing it was manifestly excessive given the small sums of money involved and the opportunistic nature of the offending.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentence had a largely cumulative effect, considering the small sums of money involved and the nature of the offending. The court also had to consider the submissions made before the sentencing judge, which were not specifically directed at the practical effect of the sentence imposed. Additionally, the court needed to assess the appropriateness of the parole eligibility date set by the sentencing judge.

In allowing the appeal, the court found that the sentence imposed was manifestly excessive. The court noted that the small sums of money involved and the opportunistic nature of the offending warranted a more lenient sentence. The court was also critical of the largely cumulative effect of the sentences and the lack of specific submissions before the sentencing judge regarding the practical effect of the sentence. The court substituted a sentence of three years' imprisonment for counts 6 to 10, 12, and 14 to 19 and confirmed the sentences on the other counts. The court also set aside the parole eligibility date and substituted a new date of 29 September 2010.

Orders

Orders of the court

1. Application for leave to appeal against sentence is granted

2. Appeal allowed

3. Set aside the sentence imposed on each of counts 6 to 10, 12 and 14 to 19 and substitute a sentence of three years’ imprisonment and otherwise confirm the sentences imposed on the other counts

4. Set aside the parole eligibility date imposed of 1 August 2011 and substitute 29 September 2010 as the date on which the defendant is eligible for parole

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 Watson [2009] QCA 243
PARTIES:	R v WATSON, Gavin Cedric (applicant)
FILE NO/S:	CA No 83 of 2009 DC No 62 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	28 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2009
JUDGES:	Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence is granted 2. Appeal allowed 3. Set aside the sentence imposed on each of counts 6 to 10, 12 and 14 to 19 and substitute a sentence of three years’ imprisonment and otherwise confirm the sentences imposed on the other counts 4. Set aside the parole eligibility date imposed of 1 August 2011 and substitute 29 September 2010 as the date on which the defendant is eligible for parole
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – appeal by convicted persons – applications to reduce sentence – when granted – particular offences – property offences – where applicant pleaded guilty to 18 counts in respect of offences of stealing, burglary by breaking, unlawfully using a motor vehicle, burglary and attempted burglary – where applicant sentenced to four years’ imprisonment for each of the burglary and stealing, burglary by breaking and burglary offences – where at time of sentencing applicant had served two years one month of a current three year sentence for similar offending – where all sentences were concurrent with each other and existing sentences – where parole eligibility date fixed 18 months after the expiration of the existing sentences – where submissions before sentencing judge were not specifically directed at the practical effect of the sentence being imposed – where sentence imposed had a largely cumulative effect – where small sums of money involved and applicant’s offending of an opportunistic nature – whether sentence manifestly excessive Corrective Services Act 2006 (Qld), s 184(2) Penalties and Sentences Act 1992 (Qld), s 160C(2), s 160C(3), s 160C(5) R v Bryant (2007) 173 A Crim R 88; [2007] QCA 247, considered
COUNSEL:	C L Morgan for the applicant P F Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent