R v Whelan - [1997] QCA 305

[1997] QCA 305

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA de JERSEY J

CA No 285 of 1997
THE QUEEN
v.

LUCAS JOHN WHELAN

BRISBANE

.	.DATE 26/08/97

260897 D.1 T6/TW12 M/T COA193/97

THE CHIEF JUSTICE: This applicant who seeks to challenge the sentence imposed upon him was a 26 year old offender with a drug addiction. He was sentenced on 27 June 1997 for a very large number of offences. There were numerous breaking and entering offences and also there were offences in the following categories; unlawful use of a motor vehicle; wilful damage; assault occasioning bodily harm; breach of probation; bail offences and other offences of dishonestly.

When sentenced terms of imprisonment of varying length were imposed, but looking at the longest of them for the purpose of deciding what was the effective penalty, it can be seen that a term of three years was imposed.

Although the various sentences on this occasion were concurrent, the three years to which I have just referred was made cumulative on sentences that the applicant was then serving.

The Judge having announced the three year effective term also declared that the non-parole point should be reached three years ahead, that is three years from June 1997. These offences, for which he was sentenced, were all committed in the course of a single week or so when the applicant was unlawfully at large having absconded from a drug dependant centre while he was serving a sentence of home detention. He and the co-offender for that matter, who was involved with him, departed in the middle of the applicant's course at the drug dependant centre in August of 1996.

The applicant has had a long criminal history and over the years

260897 D.1 T6/TW12 M/T COA193/97

various orders have been made in his case for probation at first
then fines and eventually imprisonment.

In particular the applicant had previously been sentenced to a term of seven years imprisonment in July of 1994 for very many offences once again; house breaking; stealing and other offences of dishonesty. There were, I believe, a number of offences of the order of 75 dealt with on that occasion.

Accompanying that seven year term the Judge who had then sentenced the applicant ordered that he be eligible for parole after serving 12 months of that sentence.

There were additional rather shorter terms of imprisonment that then applied to the applicant, one month for breach of bail and four months for being unlawfully at large. The effect then was that he was, in effect, sentenced to a total term of some seven years and five months before the present additional head term of three years cumulative was imposed.

The total sentence, adding together all of the periods that I have mentioned of some 10 years and five months, were dated back in their operation to May of 1994 and that meant that those head terms would run to November/October of 2004. It is not necessary for present purposes to…

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 [1997] QCA 305
Case: [1997] QCA 305
Decision Date: 26/08/1997

CaseChat Overview and Summary

The case of R v Whelan involved the defendant, Lucas John Whelan, appealing against the sentence imposed on him. Whelan, a 26-year-old with a history of drug addiction, was sentenced on June 27, 1997, for a large number of offences, including breaking and entering, unlawful use of a motor vehicle, wilful damage, assault occasioning bodily harm, breach of probation, bail offences, and other dishonest acts. The court imposed a term of imprisonment, with the longest effective sentence being three years. These sentences were concurrent, but the three-year sentence was cumulative on sentences Whelan was already serving. The non-parole period was set to be three years from June 1997.

The legal issues in this case centred around the appropriateness of the sentence, particularly the non-parole point set by the sentencing judge. The defence argued that the non-parole point was set at a time more than halfway through the sentence, which they claimed was contrary to previous court decisions. The court had to determine whether the sentence was manifestly excessive and whether the non-parole point was appropriately set given the circumstances, including the cumulative nature of the sentences.

The Court of Appeal, comprising Macrossan CJ, McPherson JA, and de Jersey J, found that there was no rigid principle that must be applied in setting the non-parole point when dealing with cumulative sentences. The discretion of the sentencing judge was upheld, considering the defendant's extensive criminal history. The court concluded that the sentence, including the non-parole period, did not appear to be manifestly excessive and, therefore, the application to challenge the sentence was refused.

Orders