R v Wesener - [2012] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wesener [2012] QCA 149

PARTIES:

R
v
WESENER, Kurt William
(applicant)

FILE NO/S:

CA No 364 of 2011
DC No 964 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

8 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2012

JUDGES:

Holmes and Fraser JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted at trial of one count of breaking and entering a gunshop and stealing firearms, magazines and ammunition – where the stolen firearms were found to be intended for sale on the black market and likely to be used in criminal activity – where the applicant was sentenced to nine years imprisonment with parole eligibility after serving half – where the applicant was also sentenced to concurrent terms of imprisonment ranging between six and 12 months for other offences of dishonesty committed between the burglary offence and his arrest – where the applicant was 25 at the time of the offence and had previous convictions comprising mostly of assault related charges, dealt with in the Magistrates Court – whether the sentence imposed was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was convicted at trial of one count of breaking and entering a gunshop and stealing firearms, magazines and ammunition – where the stolen firearms were found to be intended for sale on the black market and likely to be used in criminal activity – where the applicant was sentenced to nine years imprisonment with parole eligibility after serving half – where the applicant’s co-offender was sentenced to eight years imprisonment for the same offence, with parole eligibility at the halfway point – whether the applicant’s sentence manifested a disparity with the co-offender’s such as to give rise to a justifiable sense of grievance

R v Anderson[1998] QCA 272, considered
R v Mundy[2011] QCA 217, considered
R v Munt[1999] QCA 141, considered

COUNSEL:

D Lynch for the applicant
B J Merrin for the respondent

SOLICITORS:

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

HOLMES JA: The applicant seeks leave to appeal against a sentence of nine years imprisonment, with parole eligibility at the halfway mark, imposed when he was convicted after a trial of one count of breaking and entering premises and stealing. He was, at the same time, sentenced to concurrent terms of imprisonment, ranging between six months and 12 months, for a number of other offences of dishonesty committed in the interval between the burglary offence and his arrest, but he does not…

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 Wesener

Details

AGLC: R v Wesener [2012] QCA 149
Case: [2012] QCA 149
Decision Date: 8 June 2012

CaseChat Overview and Summary

The applicant, in this case, appealed against the sentence imposed by the trial court following his conviction for breaking and entering a gun shop and stealing firearms, magazines, and ammunition. The stolen firearms were intended for sale on the black market and likely to be used in criminal activity. The applicant was sentenced to nine years imprisonment, with parole eligibility after serving half, and concurrent terms of imprisonment for other offences of dishonesty. The applicant, who was 25 at the time of the offence, had previous convictions mostly comprising assault-related charges. The co-offender received a sentence of eight years imprisonment for the same offence, with parole eligibility at the halfway point.

The legal issues the court needed to consider were whether the sentence imposed was manifestly excessive and whether there was a disparity between the applicant's sentence and that of the co-offender, such that it gave rise to a justifiable sense of grievance. The court examined the gravity of the offence, the applicant's criminal history, and the need for general deterrence and denunciation, in addition to assessing the parity between co-offenders.

In dismissing the appeal, the court found that the sentence was not manifestly excessive or inadequate. The gravity of the offence, the intent behind the theft, and the need for general deterrence and denunciation were taken into account. The court also considered the applicant's criminal history and found that the sentence was proportionate to the seriousness of the offence. The court concluded that there was no significant disparity between the applicant's sentence and that of the co-offender, and therefore, no justifiable sense of grievance arose from the parity between the sentences. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal is refused

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 Wesener [2012] QCA 149
PARTIES:	R v WESENER, Kurt William (applicant)
FILE NO/S:	CA No 364 of 2011 DC No 964 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	8 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2012
JUDGES:	Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted at trial of one count of breaking and entering a gunshop and stealing firearms, magazines and ammunition – where the stolen firearms were found to be intended for sale on the black market and likely to be used in criminal activity – where the applicant was sentenced to nine years imprisonment with parole eligibility after serving half – where the applicant was also sentenced to concurrent terms of imprisonment ranging between six and 12 months for other offences of dishonesty committed between the burglary offence and his arrest – where the applicant was 25 at the time of the offence and had previous convictions comprising mostly of assault related charges, dealt with in the Magistrates Court – whether the sentence imposed was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant was convicted at trial of one count of breaking and entering a gunshop and stealing firearms, magazines and ammunition – where the stolen firearms were found to be intended for sale on the black market and likely to be used in criminal activity – where the applicant was sentenced to nine years imprisonment with parole eligibility after serving half – where the applicant’s co-offender was sentenced to eight years imprisonment for the same offence, with parole eligibility at the halfway point – whether the applicant’s sentence manifested a disparity with the co-offender’s such as to give rise to a justifiable sense of grievance R v Anderson[1998] QCA 272, considered R v Mundy[2011] QCA 217, considered R v Munt[1999] QCA 141, considered
COUNSEL:	D Lynch for the applicant B J Merrin for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent