R v Whelan - [1998] QCA 151

COURT OF APPEAL

[1998] QCA 151

DAVIES JA PINCUS JA DOWSETT J

CA No 430 of 1997
THE QUEEN
v.

JODY MAREE WHELAN

BRISBANE
..DATE 17/03/98
170398 D.1 T12/SH24 M/T COA50/98
DAVIES JA: I shall ask Mr Justice Pincus to deliver his reasons
first - I'm sorry, Mr Justice Dowsett.

DOWSETT J: The applicant was born on 2 February 1967 and was 30 years of age at the time of sentence. She was 29 at the time of commission of most of the offences. On 7 November 1997 she pleaded guilty to two counts of breaking, entering and stealing; 19 counts of housebreaking; 19 counts of stealing; one count of unlawful use of a motor vehicle and one of wilful damage. These offences occurred between 4 May 1995 and 18 January 1997. The total amount of property involved was about $160,000.

She was apprehended as a result of her fingerprints being found at the scenes of a number of the offences. She then admitted her involvement in a large number of other offences. Most of the offences occurred while she was either on bail or subject to a probation order. She is a drug addict. There is little doubt that the offences were committed to service that addiction. She has three young children aged six, three and two as at the date of sentence. They were presumably dependent upon her and resident with her.

The applicant has a substantial criminal history dating back to 1984 in which year she was admitted to probation for two years on a charge of entering a dwelling house with intent. There were occasional minor offences thereafter, including offences of dishonesty until 1995, when she was charged with breaking and entering a dwelling house, stealing and receiving. She failed to appear but was subsequently dealt with for those offences in 170398 D.1 T12/SH24 M/T COA50/98

1996, at which time she was also dealt with for a number of other similar offences. She was sentenced to imprisonment for four months to be followed by probation for three years. She was later re-sentenced for the offences, receiving a total sentence of 18 months with a recommendation for parole after six months.

On the present breaking, entering and stealing and housebreaking counts she was sentenced to nine years imprisonment. On the stealing counts and on the wilful damage count she was sentenced to imprisonment for a period of one year. On the unlawful use count she was sentenced to imprisonment for a period of five years. All sentences were ordered to be served concurrently with a recommendation for parole after three years. A co- accused, one Bell, had previously been dealt with on three counts of housebreaking, one of entering a dwelling house with intent, four counts of stealing, two of unlawful use, one of receiving and one of false pretences. She also had a not insubstantial criminal history. She was sentenced to three years imprisonment with a recommendation that she be considered for parole after serving 12…

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 Whelan

Details

AGLC: R v Whelan [1998] QCA 151
Case: [1998] QCA 151
Decision Date: 17/03/1998

CaseChat Overview and Summary

In the case of R v Whelan, the appellant, Jody Maree Whelan, was convicted of multiple counts of breaking, entering, stealing, housebreaking, unlawful use of a motor vehicle, and wilful damage. The offences occurred between May 1995 and January 1997, with the total value of property stolen amounting to approximately $160,000. Whelan was apprehended due to her fingerprints being found at the scenes of several offences. The appellant had a substantial criminal history dating back to 1984 and had been on bail or under a probation order when most of the offences were committed. She is a drug addict, and there is little doubt that her crimes were committed to support her addiction. The primary legal issue before the court was whether the sentence imposed on Whelan was manifestly excessive.

The court considered the sentence imposed on Whelan in light of previous cases with similar offending patterns and sentences, including Burrows, Kavanagh, Barnes, and Robinson. In Burrows, the court upheld a sentence of approximately 10 years for a series of housebreaking offences involving property valued at $15,000. In Kavanagh, the court did not interfere with an eight-and-a-half-year sentence for a series of housebreaking and stealing offences involving property valued at $190,000. In Barnes, the court upheld a seven-year sentence for burglary and other related offences, while in Robinson, the court did not interfere with a seven-and-a-half-year sentence for a series of housebreaking, stealing, and false pretences offences involving property valued at over $80,000.

The court found that the sentence imposed on Whelan was at the higher end of the appropriate range and could not be justified based on the cases considered. The court observed that sentences in the range of seven to ten years might be appropriate for such a cluster of offences, but much depends on the offender's previous history and degree of cooperation with the police. The court considered the mitigating factors, including Whelan's guilty plea, her addiction, and her family commitments. In light of these factors, the court found that the appropriate sentence range for Whelan's offences was closer to seven years than nine or ten.

The court granted leave to appeal and substituted the nine-year sentence with a seven-year sentence. The court did not interfere with the recommendation for parole after three years.

Orders