R v Webb - [2005] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

R v Webb [2005] QCA 282

PARTIES:

R
v
WEBB, John Douglas
(applicant)

FILE NO/S:

CA No 151 of 2005
DC No 364 of 2005
DC No 1328 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2005

JUDGES:

de Jersey CJ, Keane JA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

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 REFUSED - GENERALLY - where applicant pleaded guilty to multiple counts of burglary and stealing, unlawful use of and possession of motor vehicles and motor vessels as well as fraud - where applicant was sentenced to four years imprisonment to be suspended after eight months - where sentence was to be served cumulatively with sentence of two years suspended after four months imposed by the Supreme Court for convictions in relation to a number of drug offences - whether the learned trial judge erred in failing to accord sufficient weight to the "totality principle" when sentencing the applicant - whether the learned trial judge had recognised that the applicant's offending may have been the result of his drug addiction - whether the starting head sentences adopted by the learned trial judge when sentencing for the applicant's fraud convictions were excessive

Mill v The Queen (1988) 166 CLR 59, applied

R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, considered

R v Perrem [2000] QCA 339; CA No 119 of 2000, 18 August 2000, cited

COUNSEL:

B G Devereaux for the applicant
M J Copley for the respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the application for leave to appeal against sentence should be dismissed, and with His Honour's reasons.

KEANE JA: On 12 May 2005 the applicant pleaded guilty to six counts of burglary and stealing, one count of breaking and entering a car and stealing, one count of unlawful use of a motor vehicle with a circumstance of aggravation, two counts of unlawful use of a motor vehicle, one count of unlawful possession of a motor vehicle, two counts of attempted unlawful use of a motor vehicle with a circumstance of aggravation, one count of unlawful possession of a motor vessel, one count of wilful damage, seven counts of stealing, nineteen counts of fraud and one count of attempted fraud. The offences were committed in a protracted episode of dishonest conduct from the end of October 2003 to 23 April 2004.

The applicant was sentenced to…

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 Webb

Details

AGLC: R v Webb [2005] QCA 282
Case: [2005] QCA 282
Decision Date: 12 August 2005

CaseChat Overview and Summary

In the matter of R v Webb, the applicant appealed against the sentence imposed by the trial judge. The applicant pleaded guilty to multiple charges including burglary, theft, unlawful use and possession of motor vehicles and motor vessels, as well as fraud. The trial judge sentenced the applicant to a total of six years imprisonment, with the first four years suspended after eight months, to be served cumulatively with a two-year sentence suspended after four months imposed by the Supreme Court for drug-related offences. The applicant sought to appeal against the sentence, arguing that the trial judge failed to properly consider the totality principle, did not recognise the applicant's drug addiction as a mitigating factor, and imposed excessive starting head sentences for the fraud convictions.

The legal issues before the court were whether the trial judge had erred in not giving sufficient weight to the totality principle when sentencing the applicant, whether the trial judge had recognised that the applicant's offending may have been the result of drug addiction, and whether the starting head sentences for the fraud convictions were excessive. The court considered relevant authorities including Mill v The Queen, R v Hammond, and R v Perrem. The court also noted that the applicant had a history of drug addiction and criminal behaviour, and that the offences were committed over a short period of time.

The court found that the trial judge had considered the totality principle and had given appropriate weight to the various offences when imposing sentence. The court also found that the trial judge had recognised the applicant's drug addiction as a mitigating factor, but had considered it to be only one of many factors in determining the appropriate sentence. The court further found that the starting head sentences for the fraud convictions were not excessive, given the seriousness of the offences and the applicant's criminal history. The application for leave to appeal against sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Webb [2005] QCA 282
PARTIES:	R v WEBB, John Douglas (applicant)
FILE NO/S:	CA No 151 of 2005 DC No 364 of 2005 DC No 1328 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2005
JUDGES:	de Jersey CJ, Keane JA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
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 REFUSED - GENERALLY - where applicant pleaded guilty to multiple counts of burglary and stealing, unlawful use of and possession of motor vehicles and motor vessels as well as fraud - where applicant was sentenced to four years imprisonment to be suspended after eight months - where sentence was to be served cumulatively with sentence of two years suspended after four months imposed by the Supreme Court for convictions in relation to a number of drug offences - whether the learned trial judge erred in failing to accord sufficient weight to the "totality principle" when sentencing the applicant - whether the learned trial judge had recognised that the applicant's offending may have been the result of his drug addiction - whether the starting head sentences adopted by the learned trial judge when sentencing for the applicant's fraud convictions were excessive Mill v The Queen (1988) 166 CLR 59, applied R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, considered R v Perrem [2000] QCA 339; CA No 119 of 2000, 18 August 2000, cited
COUNSEL:	B G Devereaux for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent