R v West - [2012] QCA 365

SUPREME COURT OF QUEENSLAND

CITATION:

R v West [2012] QCA 365

PARTIES:

R
v
WEST, Gerald Ernest
(applicant)

FILE NO/S:

CA No 340 of 2011
DC No 397 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

Orders delivered ex tempore on 23 May 2012
Reasons delivered on 21 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 May 2012

JUDGE:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
Orders delivered ex tempore on 23 May 2012:

1.    The application for leave to appeal is granted and the appeal is allowed.

2.    The sentence imposed at first instance is set aside.

3.    Instead, the Court substitutes a sentence of 12 months imprisonment suspended forthwith, with an operational period of 12 months.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO‑OFFENDERS – where applicant pleaded guilty to one count of attempting by verbal instructions to induce a witness to give false testimony – where applicant jointly charged with a co‑offender who also pleaded guilty to the same offence – where applicant sentenced to an intensive correction order for 12 months and fined $10,000 – where co‑offender sentenced to an intensive correction order for six months and to 18 months imprisonment with immediate suspension and operational period of 18 months – where co‑offender and applicant sentenced by different Judges – where applicant’s sentence endorsed on court order sheet but not otherwise drawn to other Judge’s attention – where applicant contends sentence is manifestly excessive and disparate to that imposed on co‑offender – whether sentence manifestly excessive in all the circumstances – whether disparity of sentences unjustifiable and infringes principle of equal justice

Penalties and Sentences Act 1992 (Qld), s 13A, s 112

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; (2011) 86 ALJR 36; [2011] HCA 49, followed
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed
R v Ensbey; ex parte Attorney-General (Qld) [2005] 1 Qd R 159; [2004] QCA 335, cited
R v Harnden [2003] QCA 340, cited
R v Kucharski[1997] VicSC 249, cited
R v Wager, unreported, Court of Criminal Appeal, Queensland, Macrossan CJ, and Kelly and Connolly JJ, No 79 of 1990, cited

COUNSEL:

J R Hunter SC for the applicant
D Balic for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with White JA's reasons for the orders pronounced by this Court in this matter on 23 May 2012.

FRASER JA: I agree with the reasons for judgment of White JA for the orders made by the Court on 23 May 2012.

WHITE JA: On 23 May…

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 West

Details

AGLC: R v West [2012] QCA 365
Case: [2012] QCA 365
Decision Date: 23 May 2012

CaseChat Overview and Summary

The applicant, a party in this case, appealed against the sentence imposed by the Supreme Court of Victoria. The applicant had pleaded guilty to attempting to induce a witness to give false testimony. He was jointly charged with a co-offender who also pleaded guilty to the same offence. The applicant was sentenced to an intensive correction order for 12 months and a fine of $10,000, while the co-offender received a sentence of an intensive correction order for six months and 18 months imprisonment with immediate suspension and an operational period of 18 months. The applicant argued that the sentence imposed was manifestly excessive and disparate to that of his co-offender.

The legal issues before the court were whether the sentence was manifestly excessive in all the circumstances and if the disparity of sentences was unjustifiable and infringed the principle of equal justice. The court considered the principles of parity between co-offenders and the appropriate sentence for the offence committed. The court also evaluated whether the sentence was manifestly excessive and whether the disparity of sentences was unjustifiable and infringed the principle of equal justice.

The court found that the sentence imposed was manifestly excessive in all the circumstances. The court also found that the disparity of sentences was unjustifiable and infringed the principle of equal justice. The court concluded that the sentence imposed on the applicant was manifestly excessive and disproportionate to the sentence imposed on the co-offender. The court noted that the sentences were imposed by different judges, and the applicant's sentence was not drawn to the other judge's attention. The court substituted a sentence of 12 months imprisonment suspended forthwith, with an operational period of 12 months.

The final orders delivered ex tempore on 23 May 2012 were that the application for leave to appeal was granted and the appeal was allowed. The sentence imposed at first instance was set aside, and a new sentence of 12 months imprisonment suspended forthwith, with an operational period of 12 months, was substituted.

Orders

Orders of the court

Orders delivered ex tempore on 23 May 2012:

1. The application for leave to appeal is granted and the appeal is allowed.

2. The sentence imposed at first instance is set aside.

3. Instead, the Court substitutes a sentence of 12 months imprisonment suspended forthwith, with an operational period of 12 months.

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 West [2012] QCA 365
PARTIES:	R v WEST, Gerald Ernest (applicant)
FILE NO/S:	CA No 340 of 2011 DC No 397 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	Orders delivered ex tempore on 23 May 2012 Reasons delivered on 21 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2012
JUDGE:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 23 May 2012: 1. The application for leave to appeal is granted and the appeal is allowed. 2. The sentence imposed at first instance is set aside. 3. Instead, the Court substitutes a sentence of 12 months imprisonment suspended forthwith, with an operational period of 12 months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO‑OFFENDERS – where applicant pleaded guilty to one count of attempting by verbal instructions to induce a witness to give false testimony – where applicant jointly charged with a co‑offender who also pleaded guilty to the same offence – where applicant sentenced to an intensive correction order for 12 months and fined $10,000 – where co‑offender sentenced to an intensive correction order for six months and to 18 months imprisonment with immediate suspension and operational period of 18 months – where co‑offender and applicant sentenced by different Judges – where applicant’s sentence endorsed on court order sheet but not otherwise drawn to other Judge’s attention – where applicant contends sentence is manifestly excessive and disparate to that imposed on co‑offender – whether sentence manifestly excessive in all the circumstances – whether disparity of sentences unjustifiable and infringes principle of equal justice Penalties and Sentences Act 1992 (Qld), s 13A, s 112 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; (2011) 86 ALJR 36; [2011] HCA 49, followed Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed R v Ensbey; ex parte Attorney-General (Qld) [2005] 1 Qd R 159; [2004] QCA 335, cited R v Harnden [2003] QCA 340, cited R v Kucharski[1997] VicSC 249, cited R v Wager, unreported, Court of Criminal Appeal, Queensland, Macrossan CJ, and Kelly and Connolly JJ, No 79 of 1990, cited
COUNSEL:	J R Hunter SC for the applicant D Balic for the respondent
SOLICITORS:	Jacobson Mahony Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent