R v Weston - [2005] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Weston [2005] QCA 176

PARTIES:

R
v
WESTON, Radan Noel Thomas
(applicant)

FILE NO/S:

CA No 87 of 2005
DC No 31 of 2004
DC No 2 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bowen

DELIVERED EX TEMPORE ON:

30 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2005

JUDGES:

McPherson and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Application for leave to appeal granted
2.    Appeal allowed
3.    Substitute for the sentence of four years       imprisonment, a sentence of four years imprisonment       with a recommendation that the applicant be eligible       for parole after 18 months

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 the applicant pleaded guilty to four counts of entering a dwelling and stealing, one count of entering a premises with intent to commit an indictable offence and two counts of receiving - where value of stolen property amounted to over $83,000 - where applicant had a criminal history that reflected his addiction to drugs and included convictions for fraud - where the applicant had voluntarily sought treatment for his drug addiction - where the applicant had co-operated with the authorities by pleading guilty to offences for which there was no other evidence against him but had committed further offences after being released on bail - where the sentencing judge imposed a sentence of four years imprisonment with respect to each count - whether the sentence imposed was manifestly excessive

R v Davidson [1997] QCA 279; CA No 210 of 1997, 7 August 1997, cited
R v Easton [2002] QCA 110; CA No 12 of 2002, 21 March 2002, cited
R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited

R v Smerdon [1996] QCA 444; CA No 258 of 1996, 12 November 1996, distinguished

COUNSEL:

A W Moynihan for applicant
C W Heaton for respondent

SOLICITORS:

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

McPHERSON JA: I will ask Justice Keane to deliver the first judgment in this matter.

KEANE JA: On 8 March 2005, the applicant pleaded guilty to four counts of entering a dwelling and stealing between 28 May 2003 and 5 February 2004, one count of entering premises with intent to commit an indictable offence and two counts of receiving. The learned sentencing judge imposed a sentence of four years imprisonment on each count.

The applicant was born on 5 April 1977. He was therefore 25 years of age when the offences were committed and 27 years of age at the day of sentence. The applicant is a drug addict.

The offences for which he was sentenced…

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 Weston

Details

AGLC: R v Weston [2005] QCA 176
Case: [2005] QCA 176
Decision Date: 30 May 2005

CaseChat Overview and Summary

The case of R v Weston involved an appeal against the sentence imposed by the trial judge. The applicant pleaded guilty to multiple counts of entering dwellings and stealing, entering premises with intent to commit an indictable offence, and receiving stolen property. The value of the stolen items totalled over $83,000. The applicant had a history of criminal activity, including fraud, which was attributed to his drug addiction. He had sought treatment for his addiction and co-operated with the authorities by pleading guilty. However, he committed further offences while on bail. The trial judge imposed a four-year imprisonment sentence for each count, which the applicant argued was manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the court should grant leave to appeal and substitute a different sentence. The court considered the totality of the applicant's criminal history, his addiction, his efforts to seek treatment, and his co-operation with the authorities. The court also weighed the seriousness of the offences and the need for deterrence and denunciation.

The court found that while the applicant's criminal history was significant, his voluntary efforts to seek treatment for his drug addiction and his co-operation with the authorities were mitigating factors. The court concluded that the sentence imposed was manifestly excessive given these factors. The court granted leave to appeal, allowed the appeal, and substituted a sentence of four years imprisonment with a recommendation that the applicant be eligible for parole after 18 months.

Orders

Orders of the court

1. Application for leave to appeal granted

2. Appeal allowed

3. Substitute for the sentence of four years imprisonment, a sentence of four years imprisonment with a recommendation that the applicant be eligible for parole after 18 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Weston [2005] QCA 176
PARTIES:	R v WESTON, Radan Noel Thomas (applicant)
FILE NO/S:	CA No 87 of 2005 DC No 31 of 2004 DC No 2 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bowen
DELIVERED EX TEMPORE ON:	30 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2005
JUDGES:	McPherson and Keane JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal granted 2. Appeal allowed 3. Substitute for the sentence of four years imprisonment, a sentence of four years imprisonment with a recommendation that the applicant be eligible for parole after 18 months
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 the applicant pleaded guilty to four counts of entering a dwelling and stealing, one count of entering a premises with intent to commit an indictable offence and two counts of receiving - where value of stolen property amounted to over $83,000 - where applicant had a criminal history that reflected his addiction to drugs and included convictions for fraud - where the applicant had voluntarily sought treatment for his drug addiction - where the applicant had co-operated with the authorities by pleading guilty to offences for which there was no other evidence against him but had committed further offences after being released on bail - where the sentencing judge imposed a sentence of four years imprisonment with respect to each count - whether the sentence imposed was manifestly excessive R v Davidson [1997] QCA 279; CA No 210 of 1997, 7 August 1997, cited R v Easton [2002] QCA 110; CA No 12 of 2002, 21 March 2002, cited R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited R v Smerdon [1996] QCA 444; CA No 258 of 1996, 12 November 1996, distinguished
COUNSEL:	A W Moynihan for applicant C W Heaton for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent