R v Whelan - [2010] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION: R v Whelan [2010] QCA 12
PARTIES: R
v
WHELAN, Troy Joseph
(applicant)
FILE NO/S: CA No 238 of 2009 DC No 367 of 2009 DC No 368 of 2009 DC No 382 of 2009
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED EX
TEMPORE ON: 11 February 2010
DELIVERED AT: Brisbane
HEARING DATE: 11 February 2010
JUDGES: Holmes, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: Application dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced on pleas of guilty to one count of receiving stolen property, one count of burglary by breaking and one count of common assault – where applicant’s previous suspended sentence activated in full – where sentence imposed on offences previously subject to a probation order– whether judge erred in fully activating the suspended sentence – whether sentence for offences previously subject to a probation order manifestly excessive – whether sentence imposed on new offences manifestly excessive
COUNSEL: The applicant appeared on his own behalf
D Boyle for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions for the respondent

HOLMES JA: The applicant was sentenced on 3 September 2009 on pleas of guilty to one count of receiving stolen property, one count of burglary by breaking and one count of common assault. At the same time the learned sentencing judge was required to take action in respect of the applicant's breaches of a suspended sentence of three years and two months imprisonment and a two year probation order imposed on him in April 2006. The suspended sentence, which had an operational period of five years, was imposed in respect of nine offences of burglary, one of entering a dwelling with intent by breaking and one of entering a dwelling and committing an indictable offence. It was activated in full. The probation order was imposed in respect of two offences of stealing, one of entering a dwelling with intent by break at night, one of attempted entering a dwelling with intent and four offences of entering a dwelling and committing an indictable offence. The learned judge re-sentenced the applicant to two years imprisonment in respect of those offences but made that sentence concurrent with the term of the previously suspended sentence.

As to the new counts before the sentencing court, the judge sentenced the applicant to three months imprisonment in respect of the common assault and 10 months imprisonment in respect of each of the counts of receiving and burglary by breaking, making those sentences concurrent with each other but cumulative on the earlier mentioned sentences. A parole eligibility date was set after 18 months.

The applicant now seeks leave to appeal. In respect of the imposition of the whole of the period of suspended imprisonment, that…

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.

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Details

Case: [2010] QCA 12
Decision Date: 11/02/2010

CaseChat Overview and Summary

The case of R v Whelan was heard in a higher court, where the applicant sought to appeal against his sentence following a guilty plea to three charges: receiving stolen property, burglary by breaking, and common assault. The applicant had a prior criminal record, including a suspended sentence that was activated in full, and had also previously been subject to a probation order. The applicant argued that the judge had erred in fully activating the suspended sentence and that the sentences imposed on the new offences were manifestly excessive.

The court examined whether there were grounds for interference with the sentence, specifically whether the sentence was manifestly excessive or inadequate. The court considered the nature of the offences, the applicant's criminal history, and the sentencing principles applicable. The court noted that the applicant had a history of reoffending despite previous orders intended to rehabilitate him. The court also highlighted the seriousness of the current offences and the need to deter the applicant and others from committing similar crimes.

The court found that the judge did not err in activating the suspended sentence in full, given the applicant's history of reoffending and the need for general deterrence. The court also concluded that the sentences imposed on the new offences were not manifestly excessive, taking into account the seriousness of the crimes and the need to protect the community. The court held that the sentence reflected a balanced approach to punishment, deterrence, and rehabilitation, and dismissed the application.

Orders

Orders of the court

Application dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Whelan [2010] QCA 12
PARTIES:	R v WHELAN, Troy Joseph (applicant)
FILE NO/S:	CA No 238 of 2009 DC No 367 of 2009 DC No 368 of 2009 DC No 382 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX
TEMPORE ON:	11 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2010
JUDGES:	Holmes, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced on pleas of guilty to one count of receiving stolen property, one count of burglary by breaking and one count of common assault – where applicant’s previous suspended sentence activated in full – where sentence imposed on offences previously subject to a probation order– whether judge erred in fully activating the suspended sentence – whether sentence for offences previously subject to a probation order manifestly excessive – whether sentence imposed on new offences manifestly excessive
COUNSEL:	The applicant appeared on his own behalf D Boyle for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions for the respondent